28th Annual Conference CLE Materials

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Panel I - Space Law: Issues and Progress

• “Legal experts: Conflict in outer space will happen”
• “The Woomera Manual on the International Law of Military Space Operations”
•  “International Law and Military Operations in Space” by Michael N. Schmitt
• “The International Legal Implications of Military Space Operations: Examining the Interplay between International Humanitarian Law and the Outer Space Legal Regime” by Dale Stephens (International Law Studies, vol. 94, 2018, p. 75-101.)
• "Conflicts in Space: International Humanitarian Law and Its Application to Space Warfare” by Dale Stephens and Cassandra Steer (Annals of Air and Space Law, vol. 40, 2015, p. 1-32.)
• “The Physics of Space Security: A Reference Manual” by David Wright, Laura Grego, and Lisbeth Gronlund. (American Academy of Arts & Sciences, 2005.)
•  “Securing the Skies: Ten Steps the United States Should Take to Improve the Security and Sustainability of Space” by Laura Grego and David Wright. (Union of Concerned Scientists, 2010.)
  • Full Report PDF
  •  Executive Summary PDF
• “A History of Anti-Satellite Programs” by Laura Grego (Union of Concerned Scientists, 2012.)
• “50 Years After the Outer Space Treaty: How Secure is Space?” Laura Grego. (Space Security Index, 2017.)
• “Global Counterspace Capabilities: An Open Source Assessment” Brian Weeden & Victoria Samson, editors. (Secure World Foundation, 2018.)
• “Soft Law’s Failure on the Horizon: The International Code of Conduct for Outer Space Activities” by Jack M. Beard

Panel II - Legal Issues Confronting the Military National Security Law Community 

• “Report on the Legal and Policy Frameworks Guiding the United States' Use of Military Force and Related National Security Operations”
• OLC Slip Opinion “April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities”
• “A Practical Perspective on Attacking Armed Groups” by Brigadier General R. Patrick Huston
• “Targeting, the Law of War, and the Uniform Code of Military Justice” by Michael W. Meier & James T. Hill
•  “Understanding the Challenge of Legal Interoperability in Coalition Operations” by David S. Goddard
• “Human-Machine Interaction in the Development, Deployment and Use of Emerging Technologies in the Area of Lethal Autonomous Weapons Systems” (US Submission)
• “At the Crossroads of Control: The Intersection of Artificial Intelligence in Autonomous Weapon Systems with International Humanitarian Law” by Alan L. Schuller
• “Battlefield Singularity: Artificial Intelligence, Military Revolution, and China’s Future Military Power” by Elsa B. Kania
• ICRC Commentary to the Geneva Conventions, Common Article 3 - Conflicts not of an international character (2016) – ¶¶ 452-482
  
• Jelena Pejic, The protective scope of Common Article 3: more than meets the eye, International Review of the Red Cross, Volume 93 Number 881, March 2011, at pp. 189-205
• ICRC report for the 32^nd International Conference of the Red Cross and Red Crescent (2015) – International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, at pp. 13-19.
• ICRC (2015) – The Applicability of IHL to Terrorism and Counter Terrorism
• Jelena Pejic, Extraterritorial targeting by means of armed drones: Some legal implications, International Review of the Red Cross, Volume 96, Issue 893, March 2014, pp. 67-106
• Defense Department Annual Report to Congress on Military and Security Developments involving the People’s Republic of China 2018

Panel III - The 4^th Amendment, Surveillance and the Future

• Riley v. California (SCOTUS)
• United State v. Mohamud (U.S. Court of Appeals for the 9^th Circuit 2016)
• Jamil Jaffer, “Forgetting Lessons of 9/11, Rebuilding FISA ‘Wall’ Would be a Mistake”, The Daily Signal (November 30, 2017)
  
• Jamil Jaffer, “Security Vetting in an Age of Terror”, RealClear Defense (July 23, 2018).
• “Modern Privacy Advocacy: An Approach at War with Privacy Itself?” by Jamil Jaffer and Justin “Gus” Hurwitz
• “Borders and Bits” by Jennifer Daskal. Download available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3096330
  
• Jennifer Daskal , Microsoft Ireland, the CLOUD Act, and International Lawmaking 2.0, 71 Stan. L.  Rev Online 9.
•  “Low-Hanging Fruit: Evidence-Based Solutions to the Digital Evidence Challenge” by Jennifer Daskal and William Carter
• “Constitutional Limits on Electronic Border Searches” by Laura K. Donohue
• Deliver Uncompromised: A Strategy for Supply Chain Security and Resilience in Response to the Changing Character of War by Chris Nissen, John Gronager, Robert Metzger, Harvey Rishikof
  
  
  

Panel IV - Reviewing Current Controversies Surrounding Security Clearances 

• “The Rob Porter mess reveals a broken White House, not a broken security process” by Mark Zaid
• Executive Order 12968
•  Greene v. McElroy, 360 U.S. 474 (1959)
•  Department of Navy v. Egan, 484 U.S. 518 (1988)
• Security Executive Agent Directive 4, National Security Adjudicative Guidelines (Effective June 8, 2017)
• Intelligence Community Policy Guidance Number 704.2 (2008),
• “Security Clearance Process: Answers to Frequently Asked Questions” Michelle D. Christensen, Congressional Research Service, October 7, 2016.
• “JUDICIAL INTERPRETATIONS OF EGAN” by Louis Fisher, Specialist in Constitutional Law, November 13, 2009.
• Executive Order 10865
• Executive Order 13467 (Bush Administration 2008)
• Executive Order 13764 (Obama Administration)
• Intelligence Community Policy Guidance (ICPG) 704.4: Reciprocity of Personnel Security Clearance and Access Determinations
• Statement by the President on FISA Amendments Reauthorization Act of 2017
• “Summary: The FISA Amendments Reauthorization Act of 2017” by Emma Kohse via Lawfare
• Text of FISA Amendments Reauthorization Act of 2017
• DNI's Marijuana Memo from October of 2014
• El Ganayni Third Circuit Decision
• Wonders Federal Circuit Decision
• Berry v. Conyers Federal Circuit Decision
• Kaplan v. Conyers Federal Circuit Rehearing En Banc Decision
• DoD Directive 5220.6: Defense Industrial Personnel Security Clearance Review Program
• Intelligence Community Directive (ICD) 704
• 2006-700-3: ODNI Intelligence Community Modifications To Annex C of DCID 6/4  (rescinded 1 October 2008)
• 2006-700-5: ODNI Intelligence Community Modifications to DCID 6/4, Annex F "Reciprocity of SCI Eligibility Determinations" (rescinded 1 October 2008)
• DCID 6/4: Personnel Security Standards and Procedures Governing Eligibility For Access to Sensitive Compartmented Information (SCI) (02 July 1998)

Panel V - Ethical Challenges of the National Security Lawyer: A Roundtable Discussion  

• The Model Rules of Professional Conduct
  • 1.6 (a) and (b)
  • 1.8 (a) and (b)
  • 1.9(c)(1) and (2)
  • 1.13(b) and (c)
• "14 General Principles” Office of Government Ethics
• James Baker In the Common Defense: National Security Law for Perilous Times Chapter 10 "The National Security Lawyer"

Panel VI - Global Trade and National Security

• “Considering a “Smart” Telecom Deal with a Chinese Firm? Two Challenges Posed by FIRRMA” by Elizabeth Rogers
• “How to Avoid Hostile Takeovers Without Really Trying: The Broadcom-Qualcomm Saga” by Benjamin Waters
• “Investment Restrictions on China: The Decision that Wasn’t” by Jim Lewis, William Reinsch, Scott Kennedy, and Stephanie Segal
• “The Foreign Investment Risk Review Modernization Act of 2018” by Stephanie Zable
• “Foreign Investment Bill and its Impact on the VC and Startup Ecosystem” by Jeff Farrah
• “German Government Increases Foreign Investment Oversight” Latham & Watkins Client Alert Commentary
• “Foreign Investment Control Heats Up: A Global Survey of Existing Regimes and Potential Significant Changes on the Horizon” Jones Day White Paper
• Treasury FIRRMA FAQs
• FIRRMA Summary
• FIRRMA Statute
• John S. McCain National Defense Authorization Act for Fiscal Year 2019 FIRRMA section. Pp 1362

Panel VII - The Movement of Individuals Across Borders and National Security

• “Immigration, Crime and Terrorism" in Marc R. Rosenblum and Daniel J. Tichenor eds. Oxford Handbook of the Politics of International Migration
• “Addressing side-effects of increasing border security cooperation: A global perspective” by Rey Koslowski
• Federal Register Proposed Rule on "Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children”
• “Detaining Families A Study of Asylum Adjudication in Family Detention” by Ingrid Eagly
• “Credible Fear: A Screening Mechanism in Expedited Removal” An Issue Brief from human rights first.
• “Death by a Thousand Cuts: The Trump Administration’s Systematic Assault on the Protection of Unaccompanied Children” by Jennifer Podkul and Cory Shindel (Kids in Need of Defense)
• “Explaining the Indefensible” by Peter Skerry
• “Comprehensive Immigration Confusion” by Peter Skerry
• “Good Neighbors and Good Citizens: Beyond the Legal-Illegal Immigration Debate” by Peter Skerry and Noah Pickus

Panel VIII - SCOTUS, GTMO, the FISC and More: The Role of the Courts in Shaping National Security Law

• SCOTUS:
  • Pending cert. petition in Hernandez II (cross-border shooting)(Hernandez v. Mesa), likely considered alongside Rodriquez v. Swartz (9th Cir. 2018)
  • Virginia Uranium v. Warren, No. 16-1275 (Atomic Energy Act preemption)
  • Pending cert. petition in: Sudan v. Owens
  • Other pending cases: Gundy v. U.S. (non-delegation doctrine); Nielson v. Preap (immigration detention); Larrabee v. U.S. (court martial of retired service member).
    
• Lower Courts, including GTMO and FISC:
  • Al-Alwi v. Trump (D.C. Cir.) (continuing GTMO detention)
  • James Madison Project v. DOJ (Steele dossier FOIA)
  • The CCR “mass” GTMO habeas petition (DDC)
  • ACLU/MFIA suit for FISC opinions (FISA Court)
  • Doe v. Mattis (DDC)
  • Wikimedia Foundation v. NSA (D. Md.) (ongoing civil suit challenging lawfulness and constitutionality of upstream collection)
  •  McKeever v. Sessions (D.C. Cir.)(release of grand jury records)
    • Memorandum Opinion 4/16/2018
    • Audio Recording of Oral Argument
    • “Oral Argument Summary: McKeever v. Sessions” by Jeremy Gordon via Lawfare
  • Al Shimari v. CACI Premier Tech., Inc. (E.D. Va.) (ongoing civil suit challenging contractors’ role in torture at Abu Ghraib)
  • Zaidan v. Trump (D.D.C.) (political question doctrine as applied to placement of citizen on kill list)
  • Al-Nashiri Abatement Appeal (CMCR)
•  Impact of the Kavanaugh Hearings on the Court:
  • “The Coming Storm Over the Supreme Court” by Barry Friedman (NYT)
  • “Kavanaugh Confirmation Won’t Affect Supreme Court’s Legitimacy” by Cass Sunstein via Bloomberg
  • “Is the Supreme Court Going to Suffer a Crisis of Legitimacy?” by Ilya Somin (Volokh Conspiracy)
  • “Kavanaugh’s record hints at a potential Supreme Court shift on detainees, wartime powers” by Missy Ryan (WaPo)
  • “Is Brett Kavanaugh Damaged Goods?” via POLITICO
  • “What to Expect from Kavanaugh’s 1st Term” by Dr. Adam Feldman via Empirical SCOTUS
  • “How Brett Kavanaugh will change the Supreme Court” via The Economist
  • “The Supreme Court’s legitimacy crisis is here” by Zack Beauchamp via Vox
  • “The Supreme Court’s Legitimacy is Intact” by David French via National Review.

Panel IX - Social Media: 2020

• “Jailing the Twitter Bird: Social Media, Material Support to Terrorism, and Muzzling the Modern Press” by Rachel E. VanLandingham
• “Social Media as a Tool of Hybrid Warfare” by NATO Strategic Communications Centre of Excellence
• “Social Media Compliance Programs and the War Against Terrorism” by Susan Klein and Crystal Flinn
• “#TheWeaponizationOfSocialMedia: @Characteristics_of_Contemporary_Conflicts” by Thomas Elkjer Nissen, Royal Danish Defence College
• “Why Do People Share Fake News? A Sociotechnical Model of Media Effects” by Alice E. Marwick.
• “Psychographics, Predictive Analytics, Artificial Intelligence, & Bots: Is the FTC Keeping Pace?” by Terrell McSweeny
• “The New Governors: the People, Rules, and Processes Governing Online Speech” by Kate Klonick
• “Digital Market Manipulation” by Ryan Calo

Panel X - The Role and Duty of the National Security Lawyer: The Audience Responds

• The Model Rules of Professional Conduct
  • 1.1
  • 1.2
  • 1.3
  • 1.4
  • 2.1
  • 3.3
  • 3.5
  • 5.2
• “Executive Branch Crisis Lawyering and the “Best View”” by Jack Goldsmith