34th Annual Review of the Field of National Security Law Conference: CLE Materials

Thursday, November 14, 2024

Panel 1: U.S. National Security and Outer Space

Description:

Outer Space Law initially formed as a subset of public international law, marked by treaties and soft law instruments. The regime in the interim, as reflected in The Woomera Manual on the International Law of Military Space Activities and Operations (released in September 2024) has expanded to include domestic laws and regulations as well as private international law. In this increasingly complex legal realm, what are the most challenging questions facing the United States and our allies, as well as private industry? With U.S. economic security and technological capabilities long considered core components of U.S. national security, what provisions ought to be put into place to ensure that U.S. corporate actors are able to develop critical space technologies? Simultaneously, how should commercial activity in space be regulated to ensure that private companies comply with domestic and international law? What legal norms should mark governance structures for off-world settlements? How ought we think about resource rights in light of new and emerging technologies, much less establish norms for traffic management in Low Earth orbit (LEO), Medium Earth orbit (MEO) and Geosynchronous Earth orbit (GEO)? This panel will press on the new and emerging issues which accompany the interplay among contractors, the commercial sector, military alliances, and U.S. national security in outer space.

Moderator:

• Prof. Laura K. Donohue,  Scott K. Ginsburg Professor of Law and National Security, Georgetown Law.

Panelists:

• Sarah Banco, Senior Director, Legal, Space X.
• David Koplow, Scott K. Ginsburg Professor of Law, Georgetown Law and Co-editor of The Woomera Manual on the International Law of Military Space Activities and Operations (Oxford University Press: 2024).
• Thomas McSorley, General Counsel, NATO DIANA (Defense Innovation Accelerator for the North Atlantic).
• Todd Pennington, Senior Research Fellow for Space Strategy and Policy, Center for Strategic Research, Institute for National Strategic Studies, National Defense University, former Staff Judge Advocate, USSPACECOM.

CLE Reading Materials:

• David Koplow, “In the Woomera Manual, International Law Meets Military Space Activities," Just Security (September 12, 2024)
• Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes (2020) (“The Artemis Accords”)

• Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, United Nations Treaties and Principles on Outer Space (1997) (“Outer Space Treaty”)

• Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, United Nations Treaties and Principles on Outer Space (1997) (“Rescue Agreement”) 

• Convention on International Liability for Damage Caused by Space Objects, United Nations Treaties and Principles on Outer Space (1997) (“Liability Convention”)

• Convention on Registration of Objects Launched into Outer Space, United Nations Treaties and Principles on Outer Space (1997) (“Registration Convention”) 

• Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, United Nations Treaties and Principles on Outer Space (1997) (“Moon Agreement”)

• Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, United Nations Treaties and Principles on Outer Space (1997).

• Principles Relating to Remote Sensing of the Earth from Outer Space, United Nations Treaties and Principles on Outer Space (1997).

• Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, United Nations Treaties and Principles on Outer Space (1997).

• Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, United Nations Treaties and Principles on Outer Space (1997) (“Partial Test Ban Treaty”)

• U.S. Commercial Space Launch Competitiveness Act of 2015, Pub. L. 114-90

• Federal Aviation Administration, 14 CFR Prts 401, 413, 415, 431, 435, 437, 440, 450, and 460, Fed. Reg. 76714-76730 (Sept. 19, 2024).

• Commercial Standards Paramount to Accelerating Cosmic Exploration Leadership Act (“Commercial SPACE Leadership Act”), S. 4064, 118th Cong., 2nd Sess.

• Commercial Space Act of 2023, H.R. 6131, 118th Cong., 1st Sess.

• Francesca Giannoni-Crystal, Jurisdictional Choice for Space Resource Utilization Projects: Current Space Resource Utilization Laws, 22 Santa Clara J. of Int’l L. (2024).
• John Goehring, The Commercial Space Act of 2023 is Bad for National Security, Just Security, Dec. 19, 2023.

• Frans G. Von der Dunk, Armed Conflicts in Outer Space: Which Law Applies?, 97 Int’l L. Stud. 188 (2021).

Panel 2: The Power to Cure and Kill: Synthetic Biology, Genetic Engineering, National Security Ethics, and the Model Rules of Professional Responsibility

Description:

The 2024 Annual Threat Assessment of the U.S. Intelligence Community states, “Rapid advances in dual-use technology, including bioinformatics, synthetic biology, nanotechnology, and genomic editing, could enable development of novel biological threats.” RAND President Jason Matheny calls Synthetic biology (Synbio) and AI “grave security challenges for which we are currently unprepared.” This panel seeks to prepare the national security legal community by considering synthetic biology through a legal and ethical lens: What are the key ethical issues, and considering those issues, what do, or should the Model Rules require of national security lawyers? Restated, what must a competent and diligent lawyer know and do? Among other topics, the panel will address those portions of E.O. 14110 addressing the intersection of AI and Synbio, “super-soldiers” and the Common Rule on human experimentation, U.S. regulations regarding Dual Use Research of Concern (DURC), and export rules regarding biological research that might facilitate BW capabilities. Because the law is inchoate in this field, ethics, and for lawyers the Model Rules, will (or will not) help to fill the vacuum. This will require lawyers to take special heed not just of Rules 1.1 (Competence) and 1.3 (Diligence), but also 2.1 (Advisor), 1.13 (Organization as Client), along with the principles found in the Preamble to the Rules.

Moderator:

• Hon. James E. Baker, Director, Institute for Security Policy and Law, Syracuse University

Panelists: 

•  Steven Cash, Senior Advisor to the Under Secretary for Intelligence & Analysis, DHS
•  Michael Imperiale, Arthur F. Thurnau Professor Emeritus and Professor Emeritus of Microbiology and Immunology, University of Michigan.

CLE Reading Materials:

• James Baker, The Centaur’s Dilemma: National Security Law for the Coming AI Revolution 178-224 (Brookings/Rowman and Littlefield 2020).
• Committee on Strategies for identifying and Addressing Potential Biodefense Vulnerabilities Posed by Synthetic Biology, Biodefense in the Age of Synthetic Biology, Consensus Study Report Highlights, June 2018.
• American Society of Microbiology, “Impact Assessment of Research on Infectious Agents,” September 13, 2023.
• Bill Drexel and Caleb Withers, “AI and the Evolution of Biological National Security Risks,” Center for a New American Security, August 2024.
• Department of Homeland Security, Report on Reducing the Risks at the Intersection of Artificial Intelligence and Chemical, Biological, Radiological, and Nuclear Threats, April 26, 2024.
• Memorandum on Advancing the United States’ Leadership in Artificial Intelligence; Harnessing Artificial Intelligence to Fulfill National Security Objectives; and Fostering the Safety, Security, and Trustworthiness of Artificial Intelligence, October 24, 2024. 
• Executive Order 14110, “On the Safe, Secure, and Trustworthy Development and use of Artificial Intelligence," October 30, 2023.
• Model Rules of Professional Conduct:  ©2024 by the American Bar Association. Reprinted with permission. All rights reserved. This information or an portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
  • Preamble & Scope
  • 1.1 Competence
  • 1.2 Scope of Representation & Allocation of Authority Between Client and Lawyer
  • 1.3 Diligence
  • 2.1 Advisor

Panel 3: Domestic Security and National Security Law

Description:

Internal use of the expansive U.S. national security apparatus places the balance between liberty and security in a republic under maximum pressure. Discretion of elected officials and protections for Americans are here structured by law, which reflects constitutional values, allocates authority to act among federal and state actors, provides limitations on government conduct, imposes decision process requirements, and provides avenues of legal recourse. This panel will explore how to conceive of domestic security, the relevant national security legal framework, and proposals for reform of the Insurrection Act and other laws. The panel will address how these relate to matters of widespread concern: civil unrest, political violence by militias or other actors, election security, internal intelligence collection, national borders, immigration, and the latitude of elected officials to employ force or otherwise use the military here on the homefront.

Moderator:

• Dakota Rudesill, Associate Professor of Law, Ohio State University Moritz College of Law

Panelists:

•  Laura A. Dickinson, Oswald Symister Colclough Research Professor of Law, George Washington University Law School.
•  Rear Admiral James E. McPherson, former Under Secretary of the Army and former Acting Secretary of the Navy.
•  Mark Nevitt, Associate Professor, Emory University School of Law.

CLE Reading Materials:

• Dakota S. Rudesill, At the Elbow and Under Pressure: Legal, Military, and Intelligence Professionals, 49 Hofstra Law Review 161 (2020).
• Dakota S. Rudesill, The Land and Naval Forces Clause, 86 University of Cincinnati Law Review 391 (2018).
• Dakota S. Rudesill, The “War Game” Documentary, and Simulating a Worse J6, Just Security, October 10, 2024.
• Dakota S. Rudesill, Trump’s Military Parade: Pennsylvania Avenue is Not Red Square, Lawfare, February 21, 2018.
• Laura A. Dickinson, Protecting the U.S. National Security State from a Rogue President, 16 Harvard National Security Journal __ (forthcoming 2024).
• Laura A. Dickinson, National Security Policymaking in the Shadow of International Law, 2021 Utah Law Review 629 (2021).
• Laura A. Dickinson, How the Insurrection Act (Properly Understood) Limits Domestic Deployments of the U.S. Military, Lawfare, September 12, 2024.
• Laura A. Dickinson, Extraterritorial Counterterrorism: Policymaking v. Law, Just Security, July 15, 2021.
• Mark P. Nevitt, Domestic Military Operations and the Coronavirus Pandemic, 11 Journal of National Security Law & Policy 107 (2020).
• Mark P. Nevitt, Unintended Consequences: The Posse Comitatus Act in the Modern Era, 36 Cardozo Law Review 119 (2014).
• Mark P. Nevitt, Deploying Soldiers on American Soil: Operational Risks & Considerations, Lawfare, October 3, 2024.
• Mark P. Nevitt, 2022 Update: Good Governance Paper No. 6: Domestic Military Operations, Just Security, January 25, 2022.
• Elizabeth Goitein & Joseph Nunn, An Army Turned Inward: Reforming the Insurrection Act to Guard Against Abuse, 13 Journal of National Security Law & Policy 355 (2023).
• Harold Hongju Koh & Michael Loughlin, The President’s Legal Authority to Commit Troops Domestically Under the Insurrection Act (Sept. 2020).
• William C. Banks, Providing “Supplemental Security” – The Insurrection Act and the Military Role in Responding to Domestic Crises, 3 Journal of National Security Law & Policy 39 (2009).
• Inspector General of the U.S. Department of Defense, Review of the DOD’s Role, Responsibilities, and Actions to Prepare for and Respond to the Protest and Its Aftermath at the U.S. Capitol Campus on January 6, 2021 (November 16, 2021)

Panel 4: The Evolving Face of War: Law of Armed Conflict Challenges of Future Conflict

Description:

The character of war has never been static, but emerging technologies such as ubiquitous battlefield sensors, artificial intelligence, automation, hypersonics, cyber, and space, along with an expanding array of actors with access to these capabilities, are driving change at an extraordinary rate. Conflicts of the future will look very different from today, with militaries having to adapt doctrines, tactics, and strategies to account for the increased speed, lethality, and risks to survivability wrought by these changes. All of this will place increasing pressure on the Law of War to keep pace and achieve its foundational objectives of balancing military necessity with humanitarian protections. The principles of distinction, proportionality, and precautions in the attack, among other aspects of the law, will be challenged in unprecedented ways and require timely and adaptive responses. This panel will explore the implications of rapidly changing face of warfare and the attendant law of armed conflict challenges of future conflicts.

Moderator:

• Gary P. Corn, Program Director & Adjunct Professor Technology, Law, & Security, American University Washington College of Law.

Panelists:

•  COL Christopher Ford, General Counsel, US Army Futures Command.
• Lakmini Seneviratne,  ICRC 
•  Tobias Vestner, Visiting Scholar at the Center for International Security and Cooperation (CISAC) at Stanford University.

CLE Reading Materials:

• Colonel Gary P. Corn & Commander Peter P. Pascucci, "The Law of Armed Conflict Implications of Covered or Concealed Cyber Operations – Perfidy, Ruses, and the Principle of Passive Distinction" in Complex Battlespaces: The Law of Armed Conflict and the Dynamics of Modern Warfare, Oxford University Press (2018).
• James Farrant and Christopher M. Ford,  Autonomous Weapons and Weapon Reviews: The UK Second International Weapon Review Forum, 93 Int’l L. Stud. 389 (2017), 389-422.
• Tobias Vestner, ‘The Law of Targeting’s Mechanization and Objectivization through the Use of Artificial Intelligence’, in Irene Couzigou and Edouard Fromageau (eds.), Technological Change and international Law: Testing the Adaptability of International Law, (Edward Elgar Publishing, forthcoming).
• Tobias Vestner and Altea Rossi, Legal Reviews of War Algorithms, 97 Int’l L. Stud. 509 (2021), 509-555.
• Avi Goldfarb and Jon R. Lindsay, Prediction and Judgment. International Security, Vol. 46, No. 3 (Winter 2021/22) ( Slide Summary)
• International Committee of the Red Cross, International Humanitarian Law and the Challenges of Contemporary Armed Conflict: Building a Culture of Compliance for IHL to Protect Humanity in Today's and Future Conflicts (September 2024).