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January 17, 2024 Please note: CLE Credit is only available for live attendance, not recorded viewings.

Audio Recordings | 33rd Annual Review of the Field of National Security Law Conference

November 16-17, 2023

November 16, 2023

Conference Overview and Welcome & Panel I : A Conversation with National Security General Counsels

A Panel discussion among the current general counsels of the leading departments and agencies responsible for defense and intelligence policy and operations, moderated by a former DoD and CIA general counsel.  Will explore the lawyering component of Executive branch decision making affecting U.S. national security, focusing on the deliberative process in which legal issues are identified and resolved in support of NSC Principals and the President, and the bodies of law and applicable standards used in determining whether contemplated actions are authorized and otherwise lawful, as reflected in the experience of seasoned national security practitioners grappling with recent and ongoing matters of great consequence.

Stephen W. Preston (Moderator)

Chair, ABA Standing Committee on Law and National Security

Joshua A. Geltzer

Legal Adviser, National Security Council

Kate Heinzelman

General Counsel, Central Intelligence Agency (CIA)

Caroline Krass

General Counsel, Department of Defense (DOD)

Matthew G. Olsen

Assistant Attorney General, National Security Division, Department of Justice (AAG-NSD)

November 16, 2023

Panel II: National Security and Transnational Repression:  Legal and Policy Challenges

Panel discussion of subject matter experts addressing the national security and legal challenges related to transnational repression, including the use of harassment and other tactics by authoritarian regimes to intimidate individuals (frequently political dissidents, journalists, human rights activists, etc.) located in the United States or elsewhere, to obtain information from them, or to otherwise influence their activities.  Experts will discuss the nature of this activity, tactics used by authoritarian regimes, and the range of potential legal responses to counter transnational repression.


Jonathan G. Cedarbaum (Moderator)

Professor of Practice for National Security, Cybersecurity, and Foreign Relations Law, The George Washington University Law School

Annie Boyajian

Vice President of Policy and Advocacy, Freedom House

Laura A. Dickinson

Oswald Symister Colclough Research Professor of Law, The George Washington University Law School

David Newman

Principal Deputy Assistant Attorney General, U.S. Department of Justice, National Security Division

November 16, 2023

 Keynote Address: “The Evolution of Warfare and Current Conflicts.”

Stephen W. Preston (Introduction)

Chair, ABA Standing Committee on Law and National Security

General David H. Petraeus, USA (ret.)(Keynote Remarks)

former Director, CIA; Commander, International Security Assistance Force/U.S. Forces - Afghanistan; Commander, U.S. Central Command

November 16, 2023

Panel III: Teaching and Practicing Ethics: Are new internal or external rules needed?

The topic is inspired by two events.  The first “event” is the ABA’s response to Watergate and in particular the role of government lawyers during Watergate.  The ABA responded by requiring law schools to teach ethics to receive accreditation.  The second “event,” is the number of lawyers who are seen in today’s news as having acted outside the normal bounds of ethical practice.  The purpose of this panel is not litigate or discuss events in the news or to litigate pending cases, but rather to ask two more basic questions: (1) Based on the panelists’ experience as government officials and observers & commentators on government legal ethics, are we (law schools and agencies) teaching today’s NS lawyers what they need to know to practice national security law in conformity with the Model Rules and State Bar rules?  If not, what is it we should be doing differently?  Do we need additional rules?  A different approach to teaching ethics?  Regardless of current events, or past events, a profession charged with promulgating and administering its own ethics rules (and in this case the subset of the profession dedicated to national security law) should periodically ask: Are we doing enough?  And are we doing it the right way? 

Hon. James E. Baker (Moderator)

Director, Institute for Security Policy and Law, Syracuse University

Professor Deborah Pearlstein

Director, Program in Law and Public Policy and Charles and Marie Robertson Visiting Professor in Law and Public Affairs, Princeton School of Public and International Affairs

Hon. John E. Sparks

United States Court of Appeals for Armed Forces

November 16, 2023

Panel IV: Private Warriors – Emerging Technologies and The Democratization of Warfare

The Russia-Ukraine conflict has seen an unprecedented level of private-sector involvement, often enabled by emerging technologies.  From Starlink’s provision of satellite communications capabilities, to Microsoft’s support to Ukrainian cybersecurity, to crowd-sourced, global supply chains and app-based, battlefield intelligence collection, private actors have leveraged technology to engage with the conflict in novel ways.  This panel will explore the legal and policy ramifications of how technology has enabled such a wide array of private actors to participate in the armed conflict.  What risks do these activities present, both to the individuals involved as well as to states not party to the conflict?  How should law and policy address these risks?

Sean Watts (Moderator)

Co-Director, Lieber Institute for the Law of Land Warfare and Professor, Department of Law, United States Military Academy at West Point

Gary P. Corn

Program Director & Adjunct Professor Technology, Law, & Security, American University Washington College of Law

Matt Fussa

Trust Officer, Cisco

Lakmini Seneviratne

Operational Legal Coordinator, International Committee of the Red Cross

November 16, 2023

Panel V: Secrecy, Classification, and the Law

Law and policy regarding secrecy and classification every day shape the work of countless national security professionals and other government officials.  Secrecy and classification are subjects of engagement by all three branches of the federal government, centrally important to a continuing line of investigations and prosecutions for mishandling the nation’s secrets, and thanks in part to some of those cases also the focus of intense political controversy and debate.  Meanwhile, the recent Discord leaks underscore that longstanding questions about the design and performance of the system endure a decade after the massive Manning and Snowden leaks.

Questions this panel will address include: Information Protection and Transparency – In terms of law and policy, is the current secrecy regime appropriately balancing public interests in information security and transparency?  Does the classification system have the right categories of information, with the right definitions and the right timelines, criteria, and processes for declassification?  Is the FOIA system, and its administrative and judicial review process, properly configured and acceptably performing? The panel will also ask whether we have the security clearance system the nation’s security, and the professionals who provide it, deserve?  Does current law provide too much power to the President over security clearances?  What should we make of recent relevant administrative and legislative proposals for reform?   The panel will also explore what the current law and relevant precedent says about penalties for mishandling the nation’s secrets and whether we have the right set of laws, and penalties?  What do cases over the past 10 tell us about how the system is working and where it may be headed?

Dakota S. Rudesill (Moderator)

Associate Professor of Law, Moritz College of Law

Courtney Elwood

former General Counsel, CIA

Elizabeth (Liza) Goitein

Senior Director, Liberty & National Security, Brennan Center for Justice

Benjamin A. Powell

partner, Wilmer Hale and former General Counsel, Office of the Director of National Intelligence

November 16, 2023

Fireside Chat: “Covering National Security Legal Policy”

Oona A. Hathaway (Moderator)

Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School

Charlie Savage (Keynote Speaker)

Washington Correspondent, The New York Times

November 17, 2023

Welcome, Opening Remarks & Panel VI: The Future of Section 702

In 2008, Congress introduced Section 702 of the Foreign Intelligence Surveillance Act (FISA) to intercept communications from non-U.S. persons located overseas. In the 15 years that have since elapsed, the temporary measure has become a core part of intelligence collection. From countering economic espionage and narcotics trafficking, to preventing nuclear proliferation and anticipating threats from state actors, Section 702 provides information critical to U.S. national security. Persistent noncompliance with statutory provisions and judicial requirements designed to protect U.S. persons’ information, however, has heightened tensions around renewal of the core authorities. In 2021, the Foreign Intelligence Surveillance Court noted that from late 2016 to early 2020, the FBI regularly queried unminimized data in violation of the certified procedures. In April 2022, ODNI’s Annual Statistical Transparency Report documented nearly 3.4 million queries in one year. On no occasion had the FBI obtained a 702(F)(2) order. In response to growing concern, the FBI revised its querying procedures, modified its systems, and initiated training for analysts. With the legislation set to expire in December 2023, much of the debate about whether to renew and/or modify Section 702 has focused on whether those reforms are sufficient. In July and September 2023, the President’s Intelligence Advisory Board (PIAB) and the Privacy and Civil Liberties Oversight Board (PCLOB) weighed in with differing perspectives. In Congress, numerous bills incorporating further reforms have emerged. With the debate over Section 702 heating up, this panel will delve into the PIAB and PCLOB recommendations and legislative proposals working their way through the House and Senate, giving conference participants insight into where things stand in relation to Section 702.


Lala Qadir (Welcome)

Chair, Advisory Committee, ABA Standing Committee on Law and National Security

Palmer Gene Vance II (Opening Remarks)

Chair, ABA House of Delegates

Prof. Laura K. Donohue (Moderator)

Scott K. Ginsburg Professor of Law and National Security, Georgetown Law

Jim Baker

former General Counsel, FBI

April Doss

General Counsel, National Security Agency (NSA)

Sharon Bradford Franklin

Chair, Privacy and Civil Liberties Oversight Board

Gilman Louie

Partner, Alsop Louie Partners and Member, President’s Intelligence Advisory Board

Julian Sanchez

former Senior Fellow, Cato Institute

November 17, 2023

Panel VII:  Arctic Security, Climate Change, and the Law of the Sea

Climate change is warming the Arctic region 2-3 times the pace of the rest of the world.  This is opening the possibility for both natural resource extraction on the Arctic continental shelf within the framework of complex international legal agreements, as well as increasing transit passage through the Russian Northern Sea Route and Canada’s Northwest Passage.  Outside the Russia-Ukraine conflict, Russia plays an outsized and legally disputed role in the Arctic and has taken steps to militarize the Arctic in recent years.  Russia’s coastline and continental shelf encompasses about half of the Arctic Ocean, with the remaining coastline abutted by four other nations—United States, Canada, Denmark (via Greenland), and Norway—all NATO members.  This panel will address: How will increased Russian militarization­–coupled with a rapidly changing climate–impact Arctic security through a legal lens? In the absence of an Arctic Treaty, legal governance is shaped by the work of the Arctic Council and the UN Convention on the Law of the Sea. But the Arctic Council is expressly prohibited from addressing matters of military security.  Is the Arctic Council up to the challenge to navigate the new security environment?  Russia has a broad view of its legal authority over the Northern Sea Route, an important trade route that hugs the Russian coast.  What is Russia’s position and what is the U.S. position?  Which position has the most support in international law?   The U.S. is the only member of the Arctic Council that is not a party to the UN Convention on the Law of the Sea despite widespread support from environmentalists, the military, and industry. How does the Senate’s failure to give its advice and consent to UNCLOS affect emerging Arctic security and legal issues?   How does the USCG envision operating in the Arctic regime and what are the legal and operational challenges in doing so?

Mark P. Nevitt (Moderator)

Associate Professor, Emory University School of Law

Adm. Thad W. Allen

Former Commandant of the Coast Guard

Sherri Goodman

Senior Fellow, Environmental Change & Security Program and Polar Institute, Woodrow Wilson International Center, Secretary General, International Military Council on Climate & Security

Vice Admiral Kevin E. Lunday

Commander, U.S. Coast Guard Atlantic Area Director, Department of Homeland Security Joint Task Force East

November 17, 2023

Keynote Remarks: “Emerging Technologies and Existential Risks.” 

Harvey Rishikof (Introduction)

Senior Counselor, ABA Standing Committee on Law and National Security

Jason G. Matheny (Keynote Remarks)

President and CEO, RAND Corporation and Former Deputy Director for National Security, White House Office of Science and Technology Policy

November 17, 2023

Panel VIII: Generative Ethics:The Model Rules and the Practice of National Security Law in the Age of AI

With generative AI, like ChatGPT, the impact of AI on legal ethics is in the news, perhaps most infamously in the context of the lawyer who asked ChatGPT to generate his brief and did not check his cites, many of them were AI hallucinations.  Of course, national security specialists have been following AI long before ChatGPT came along; however, the emphasis has been on ethics in the form of AI principles for Departments and Agencies.  This panel addresses the practice of AI and national security law focusing on the ethical use of AI in legal practice.  We will consider the following questions, among others: What are the strengths and weaknesses of AI? What are the essential human skills and perspectives humans bring to the practice of law?  What are the legal tasks for which AI is most apt?  Should lawyers use AI, including generative AI, in their practice?  If so how, and subject to what safeguards?   Should lawyers use AI to regulate legal ethics?  In the practice of legal ethics?   What is the meaning of diligence in the age of AI?   What is the meaning of competence in the age of AI? 

Hon. James E. Baker (Moderator)

Director, Institute for Security Policy and Law, Syracuse University

Laurie Hobart

Associate Teaching Professor, ,Syracuse University College of Law

Lala Qadir

Chair, Advisory Committee, ABA Standing Committee on Law and National Security

November 17, 2023

Panel IV: The National Security Implications of Artificial Intelligence

Artificial intelligence (AI) has become a key feature of technology competition between the United States and China, as well as an important tool in variety of contexts, including uses of force and cybersecurity. At the same time, the United States and other countries around the world have yet to answer fundamental questions about governance of AI and regulation (or not) of the companies that are generating AI tools. This panel will provide an overview of the challenges and opportunities AI poses for U.S. national security as well as the role of domestic and international law in regulating the AI tools.


Margaret Hu (Moderator)

Taylor Reveley Research Professor and Professor of Law, William and Mary Law School

Jocelyn Aqua

Principal, Data, Risk, Privacy and AI Governance, PricewaterhouseCoopers (PwC)

Ashley S. Deeks

Class of 1948 Professor of Scholarly Research in Law, University of Virginia School of Law

Lt. Gen. Michael Groen

retired, United States Marine Corps, Commander of the Joint Artificial Intelligence Center

November 17, 2023

Panel X: U.S.-China Technology Competition:  National Security Innovation, Regulation, IP Theft, and Industrial Policy

The U.S and the People’s Republic of China are in the midst of a massive competition that cuts at the heart of our economic and national security interests.The question of which nation—or at least which group of nations—rapidly embraces and captures the benefits of emerging technologies like artificial intelligence, quantum computing, and high-performance computing, to name just a few, is likely to have a major impact on those nations’ success in the larger ongoing national and economic security competition.  At the core of who wins this race will be how quickly nations and their private industry are able to innovate, whether regulations will be able to keep pace and properly guide innovation or ultimately have a limiting effect, whether rampant IP theft will drown any investments in innovation, providing a second-mover advantage, and whether industrial policy of the American or Chinese variety can and will ultimately be successful at creating the right incentives for large scale innovation and adoption. This national security issue turns on what governments do in law and policy. In the last three years we’ve seen massive new legislation making investments in U.S. industry, including the CHIPS and Science Act, the Inflation Reduction Act, and the Infrastructure Investment and Jobs Act. On the other side, the U.S has ramped up its foreign investment oversight with CFIUS being updated by the Foreign Investment Risk Review Modernization Act and the Biden Administration developing a potential EO on outbound investment and limiting China’s access to advanced semiconductor technology.  In the PRC, the Made in China by 2025 plan accompanied by its Little Giants – Single Champions programs, the Thousand Talent and Youth Talent Plans, and industrial scale, nation-state driven cyber and real-world IP theft designed to rip the crown jewels of three decades of world leading innovation out of the hands of the U.S. and into the hands of notionally private companies in the PRC.

Jamil Jaffer (Moderator)

Founder and Executive Director, National Security Institute, Antonin Scalia Law School, George Mason University

Sarah V. Stewart

Former Assistant U.S. Trade Representative; Executive Director of Silverado Policy Accelerator

Sunita Patel

Advisory Committee, ABA Standing Committee on Law and National Security

Cordell Hull

FMR, Acting Under Secretary of Commerce for Industry and Security