29th Annual Review of the Field of National Security Law CLE Conference
Schedule
Eastern Time (ET)
Thursday, November 7, 2019
8:00 a.m. | Registration, CLE sign-in and Continental Breakfast
8:30 a.m. – 8:45 a.m. | Conference Overview and Welcome
Cynthia Ryan, Chair, Standing Committee on Law and National Security
8:45 a.m. – 10:00 a.m. | Panel I – National Security and Legal Implications of Blockchain Technology and Cryptocurrencies
The panel will explore the national security, technical and legal aspects of cryptocurrencies and blockchain technology. The discussion will cover the potential security and law enforcement benefits and risks associated with these new technologies, with a focus on how the evolving legal and regulatory landscape will influence the emergence of those potential benefits and risks. The panel will also consider privacy and security in the context of blockchain technology, and discuss potential security/privacy issues and the legal implications that technology may offer.
Moderator:
- Stevan Bunnell, Partner, O’Melveny & Myers LLP
Discussants
- Chris Brummer, Professor and Faculty Director, Institute of International Economic Law, Georgetown University Law Center
- Alan Cohn, Partner, Steptoe & Johnson LLP
- Michael Mosier, Chief Technical Counsel, Chainalysis
- John Roth, Cheif Compliance Officer, Bittrex, Former Inspector General, U.S. Department of Homeland Security
10:00 a.m. – 10:15 a.m. | Break
10:15 a.m. – 11:30 a.m. | Panel II – Legal Lessons Learned in Recent Armed Conflicts
This Panel will focus on some of the more significant military legal lessons learned in armed conflicts in which the U.S. has been involved over the past two decades. The discussion will touch upon selected issues arising in all aspects of the military’s practice of law across the operational spectrum, to include those associated with the termination of U.S. military activities in a theater of operations.
Moderator:
- Colonel Gail Curley (USA), Chief, National Security Law Division, Office of the Judge Advocate General, U.S. Army
Discussants
- Rear Admiral Steven Andersen (USCG), Judge Advocate General, U.S. Coast Guard
- Vice Admiral John Hannink (USN), Judge Advocate General, U.S. Navy
- Lieutenant General Charles Pede (USA), Judge Advocate General, U.S. Army
- Lieutenant General Jeffrey Rockwell (USAF), Judge Advocate General, U.S. Air Force
11:30 a.m. – 11:45 a.m. | Break
11:45 a.m. – 12:30 p.m. | Lunch
12:30 pm. - 1:00 p.m. | Remarks
Dana Boente, General Counsel, Federal Bureau of Investigation
1:00 p.m. – 2:15 p.m. | Panel III – Legal and Policy Responses to the Weaponization of Social Media
Social media has been weaponized in myriad ways by both foreign and domestic actors to undermine democratic institutions, spread hateful ideologies, and promote violence. In this panel, we will examine the range of responses, including national security legal questions, ranging from Article II/war powers and the First and Fourth Amendment, to the Foreign Agents Registration Act as well as provide an examination of the steps social media companies are taking to mitigate harm. The panel will review the legislative and executive branch responses, and the interplay between the two. The panel will cover, among other things, content moderation policies and legal practices, efforts to limit paid-for advertising, regulation of the private sector response to botnets, and potential reforms to section 230 of the Communications Decency Act which protects internet platforms from being held liable for third-party content on their service. It will cover threats posed by foreign actors as well as domestic threats posed by home-grown extremists and discuss the laws in place to address such threats including whether the law is sufficient.
Moderator
- Jennifer Daskal, Professor of Law, American University Washington College of Law
Discussants
- Patrick Day, Counsel, Senate Judiciary Committee
- Richard DiZinno, Chief Counsel for National Security and Crime, Senate Judiciary Committee
- Ryan Greer, Director for Program Assessment and Strategy, Anti-Defamation League, Fellow, New America
- Saleela Salahuddin, Cybersecurity Policy Lead, Facebook
- Suzanne Spaulding, Senior Advisor, Homeland Security and International Security Program, Center for Strategic and International Studies
2:15 p.m. – 2:30 p.m. | Break
2:30 p.m. – 3:45 p.m. | Panel IV – Presidential Emergency Powers and Militarization of the Border
The Constitution contains four references to emergencies, none of which expressly vests independent emergency power in the President. However, the National Emergencies Act has since 1976 permitted the President to declare a national emergency and then activate any of dozens of standby statutes that allow the President to act in ways that would be impermissible in the absence of a crisis. The panel will explore the scope and limits of presidential emergency powers, focusing in part on the recent Emergency Proclamation No. 9844, Declaring a National Emergency Concerning the Southern Border of the United States. Because the President’s Border Wall project has involved deployments of regular and National Guard military personnel, the panel will also examine legal issues surrounding deployment at the border.
Moderator
- William Banks, Board of Advisors Distinguished Professor of Law and Professor of Public Administration and International Affairs Emeritus, Syracuse University, Chair, Advisory Committee, ABA Standing Committee on Law and National Security
Discussants
- Elizabeth Goitein, Co-Director, Liberty & National Security Program, Brennan Center for Justice at NYU School of Law
- Jamil Jaffer, Founder and Executive Director, National Security Institute, Antonin Scalia Law School, George Mason University
- Stephen Vladeck, A. Dalton Cross Professor in Law, University of Texas at Austin School of Law
3:45 p.m. – 4:00 p.m. | Break
4:00 p.m.– 5:00 p.m. | Panel V – Emerging Technology, Emerging Ethics: National Security Lawyering and the Coming AI Revolution
This presentation will focus on the Code of Professional Responsibility as it addresses the ethical implications of emerging technologies--including artificial intelligence and synthetic biology--in the practice of national security law. It will explore whether the Model Rules of Professional Conduct and current agency regulations are equipped to address the challenges ahead, or will need to adapt.
Moderator
- Hon. James E. Baker, Professor of Law and Director, Institute for National Security and Counterterrorism, Syracuse University
Discussants
- Lala Qadir, Associate, Covington & Burling
5:00 p.m. | Closing Remarks
John Demers, Assistant Attorney General for National Security, U.S. Department of Justice
5:30 p.m. | Reception
6:30 p.m. – 8:00 p.m | Dinner with Keynote Remarks: 5G and National Security
Discussants
- Joel Brenner, Senior Research Fellow, Center for International Studies and Computer Science and Artificial Intelligence Lab, Massachusetts Institute of Technology, Former National Counterintelligence Executive
- Craig Silliman, Executive Vice President and Chief Administrative, Legal and Public Policy Officer, Verizon
Friday, November 8, 2019
8:00 a.m. | Registration and Continental Breakfast
8:30 a.m. – 8:35 a.m. | Welcome
Cynthia Ryan, Chair, ABA Standing Committee on Law and National Security
8:35 a.m. – 8:45 a.m. | Opening Remarks
Judy Perry Martinez, President, American Bar Association
8:45 a.m. – 9:45 a.m. | Panel VI – The Future of National Security Law: A Live Recording of the National Security Law Podcast and National Security Law Today
A discussion of national security law issues that will be faced by the next administration and congress, and eventually, the courts. Specifically, the panel will discuss: The sunsetting of core national security authorities, such as the Foreign Intelligence Surveillance Act; the federal courts' reactions to national security law authorities; privacy issues, especially following the revelation that Cambridge Analytica had bought the personal data of millions of Facebook users raising questions about the degree to which information online is monitored and sold for surveillance purposes by private companies, and whether this behavior should necessitate regulation. The Discussion will also include how a changing planet and geopolitical scene will drive new law.
- Yvette Bourcicot, Host, National Security Law Today
- Robert Chesney, Associate Dean for Academic Affairs and Director, Robert S. Strauss Center for International Security and Law, The University of Texas School of Law, Host, National Security Law Podcast
- Elisa Poteat, Host, National Security Law Today
- Stephen Vladeck, A. Dalton Cross Professor in Law, University of Texas at Austin School of Law, Host, National Security Law Podcast
9:45 a.m. – 10:00 a.m. | Break
10:00 a.m. – 11:00 a.m. | Panel VII – Ethical Challenges of the National Security Lawyer
In addressing the ethical challenges of the national security lawyer, the panel will discuss: What is the mission of a national security government lawyer? To whom and to what is loyalty ultimately owed? And, when loyalties conflict, which loyalties/duties should prevail? What does it mean to swear an oath to the Constitution? Does the Constitution supersede the Model Rules? How do the answers vary in private practice? Do lawyers have a heightened duty of ethical conduct when it comes to social media use? The national security lawyer’s advice almost inevitably “may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation” as provided by ABA Model Rules of Professional Conduct Rule 2.1. However, neither the rule nor the commentary makes it clear that while the discussion of those factors is confidential as provided by Rule 1.6, it is not necessarily covered by the attorney-client privilege. Should the rule be amended and/or a disclosure by the attorney be required?
Moderator
- William Renn Gade, General Counsel, Defense Intelligence Agency
Discussants
- Major General Charles Dunlap Jr., USAF (ret.), Professor of the Practice of Law & Executive Director, Center on Law, Ethics and National Security, Duke University School of Law
- Colonel Katherine Oler, USAF (ret.), Special Master, U.S. Court of Federal Claims
- Kristin St. Peter, Principal Deputy General Counsel, Defense Intelligence Agency
11:00 a.m. – 11:15 a.m. | Break
11:15 a.m. – 12:15 p.m. | Lunch
12:15 p.m. - 12:45 p.m. | Remarks
Michael Leiter, Partner, Skadden, Arps, Slate, Meagher & Flom, Former Director, National Counterterrorism Center
12:15 p.m. – 2:00 p.m. | Panel VIII – Needed Reform or Constitutional Minefield? Proposals to Create a Federal Crime of Domestic Terrorism
A dramatic rise in mass shootings in the United States has generated calls for action, amongst which is a proposal to construct a new crime of “domestic terrorism.” Proponents call for modeling it after 18 U.S.C. §2332b, tying it to the same enumerated crimes when committed with the intent “to intimidate or coerce a civilian population,” or “to influence the policy of a government by intimidation or coercion.” The proposed measures would further outlaw providing material support as reflect in 18 USC §2339A. Opponents note that killing, kidnapping, maiming, and assault are already illegal, making a new crime unnecessary and, as proposed, potentially unconstitutional—not least because of significant First, Second, Fourth, and Fifth Amendment concerns. Panelists bring their expertise as prosecutors, defense attorneys, government lawyers, civil rights advocates, and scholars to bear on the important and controversial question of whether Congress can, and should, create a new crime of domestic terrorism.
Moderator
- Laura Donohue, Professor of Law and Director, Center on National Security and the Law and Center on Privacy and Technology, Georgetown University Law Center
Discussants
- Mary McCord, Visiting Professor of Law and Senior Litigator from Practice, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center
- Harsha Panduranga, Counsel, Liberty & National Security Program, Brennan Center for Justice at NYU School of Law
- Shirin Sinnar, Professor of Law and John A. Wilson Faculty Scholar, Stanford University Law School
2:00 p.m. – 2:15 p.m. | Break
2:15 p.m. – 3:30 p.m. | Panel IX – The Role of the Courts in National Security
Through a moderated discussion with seasoned experts in national security litigation, the panel will review recent decisions relating to national security, discuss significant legal issues including standing, deference and state secrets, and address more generally the appropriate role for the courts
Moderator
- Robert Litt, Of Counsel, Morrison & Foerster
Discussants
- John Bellinger, Partner, Arnold & Porter
- Hon. James Boasberg, Judge, U.S. District Court for the District of Columbia
- Robert Eatinger, Jr., Partner, Dunlap, Bennett & Ludwig
- Hina Shamsi, Director, National Security Project, American Civil Liberties Union
3:30 p.m. – 3:45 p.m. | Break
3:45 p.m. – 5:00 p.m. | Panel X – Persistent Engagement: The New Cyber Command Policy for Defense
In the modern age of engagement, states are struggling for appropriate cyber policies and legal responses. The appropriate legal framework and legal norms to approach this dynamic issue will be explored by the panel.
Moderator
- Harvey Rishikof, Senior Counselor, ABA Standing Committee on Law and National Security
Commentator
- Jamil Jaffer, Founder and Executive Director, National Security Institute, Antonin Scalia Law School, George Mason University
Discussants
- Colonel Gary Corn, USA, (ret.) Program Director, Tech, Law and Security Program, American University Washington College of Law
- Emily Goldman, Cyber Lead, Policy Planning Staff, Office of the Secretary, U.S. State Department
- Catherine Lotrionte, Brent Scowcroft Scholar, Cyber Statecraft Initiative, Scowcroft Center for Strategy and Security, Atlantic Council
- David Mussington, Ph.D, CISSP, Professor of the Practice, School of Public Policy, Director, Center for Public Policy and Private Enterprise, University of Maryland School of Public Policy Cybersecurity Initiative