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SPL, CSET Publish Groundbreaking AI Framework for Judges

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AI for Judges

As artificial intelligence transforms the economy and American society, it will also transform the practice of law and the role of courts in regulating its use.

What role should, will, or might judges play in addressing the use of AI? And relatedly, how will AI and machine learning impact judicial practice in federal and state courts?

To provide a framework for judges to address AI, the Institute for Security Policy and Law at Syracuse University and the Center for Security and Emerging Technology at Gerorgetown University have published the first-of-its-kind policy brief “AI for Judges.”

Law rarely, if ever, keeps pace with technology. The legislative and appellate processes simply do not move at the same pace as technological change, and could not do so if they tried. Likewise, scholars and commentators are currently better at asking questions than answering them.

As AI applications and cases make their way to court, however, judges do not have the luxury of waiting for answers. As AI applications and cases arise in litigation, judges will confront novel issue after issue. The common law of AI cannot wait. This report is intended to provide a framework for judges to address AI.

In particular, this report considers how AI will impact courts by addressing two question sets.

1. What role should, will, or might judges play in addressing the use of AI in American society? And, relatedly, how will AI and machine learning impact judicial practice in federal and state courts?

The first section of this paper addresses these questions by considering three purposes of law as well as three judicial roles: judges as evidentiary gatekeepers; judges as constitutional guardians; and judges as AI consumers.

2. Having identified these roles, what do courts need to know about AI to effectively adjudicate its use by litigants and make informed decisions about whether to use AI as a judicial tool?

The second section addresses these questions by highlighting technical aspects of AI that are likely to play a central role in how AI is adjudicated in courts.

This report is not intended to identify and answer every question that AI might present in a court. There are too many questions to answer. Rather, the goal is to identify some of the questions and challenges with the purpose of:

  • Encouraging judicial inquiry into AI, including areas of likely litigation focus.
  • Identifying aspects of AI that should inform how judges shape their decisions and avoid unintended case law effects.
  • Suggesting a framework for addressing AI in court.

It is for judges to develop a common law of AI. This report is intended as a place to start the intellectual journey ahead.

Militarizing Civilian Emergencies? Professor William C. Banks Interviewed for the NATO M4CE Project

Professor Emeritus William C. Banks recently was interviewed as part of the M4CE Project, an initiative of the NATO Foundation for Global Governance and Sustainability, on the subject of military intervention in domestic natural and man-made emergencies:

“At the Foundation for Global Governance and Sustainability (FOGGS) we appreciate the role that military personnel and equipment can play and have already been playing in areas struck by natural or human-made disasters ranging from pandemics, like the current COVID-19 one, to floods, forest fires, hurricanes, earthquakes, industrial accidents and oil spills. We believe that this role has to be highlighted for policy makers and the public, and can be further improved on the basis of best practices that need to be collected and shared broadly.”

THE M4CE PROJECT

European policy news organization Katoikos, summarizes the M4CE interviews at its blog:

The M4CE Project: Interviews with Key Experts on Militaries for Civilian Emergencies

“Finally, perhaps the most significant challenge ahead relates to perceptions, both in terms of public opinion towards military involvement in civilian emergencies, and in terms of the military’s opinion about working alongside civilian authorities. As both Dr. William Banks and Mr. David Burke remind us, those nations with a complicated history of military abuse of power may hold deeply embedded but well-founded mistrust towards the military. Mr. Nikos Votsios raises the important question of whether militaries can be “convinced that providing assistance to state services and local communities in case of emergencies and disasters is in their mission” or constitute a distraction from the armed forces’ “real tasks.”

Watch Professor Banks’ full M4CE Project interview:

Professor Mark Nevitt: Key Takeaways From the Glasgow Climate Pact

(Lawfare | Nov. 17, 2021) Nearly 200 nations signed the Glasgow Climate Pact on Nov. 13. Acknowledging the increasingly strong connection between climate change and its role as a threat accelerant, the pact explicitly states that climate change is a “social, economic and environmental threat.” It also called on world leaders to “strengthen the global response to the threat of climate change.”

Climate change is the ultimate environmental and security destabilizer, exacerbating extreme weather, drought, wildfires, and sea level rise. Climate change is already destabilizing many parts of the world. This new climate-security reality was brought home just last month in the U.S. National Intelligence Estimate and other U.S. climate-security reports. Reducing greenhouse gas (GHG) emissions from human activity is now inextricably linked to broader security concerns. 

The Glasgow Climate Pact consists of 94 paragraphs and eight thematic subparts. In what follows, I highlight the key takeaways, some surprises, and what to look for in the future. 

  • The Rise of “Mitigation Ambition.” Since the U.N. Framework Convention on Climate Change was negotiated in 1992, international negotiators have focused on mitigation—reducing each nation’s GHG emissions pumped into the common atmosphere. The Glasgow Climate Pact provides a shot in the arm to global mitigation efforts. Paragraph 29 accelerates the timeline for nations to strengthen their mitigation plans—known as nationally determined contributions—by the end of 2022. The Paris Agreement envisioned that these updates would take place every five years, so this expedited timeline was hailed as a key Glasgow achievement. Still, while plans are important, implementation and execution will determine future climate progress. All eyes will be on COP27 in Egypt next year to examine these plans and assess what actions have been taken since Glasgow.
  • The Mission to “Keep 1.5 Alive” Is on Life Support. The 2015 Paris Agreement sought to limit the global temperature increase to 1.5 degrees Celsius (2.7 degrees Fahrenheit) above preindustrial levels and keep the global temperature increase “well below” 2.0 degrees Celsius (3.6 degrees Fahrenheit). Exceeding this threshold leads to irreversible, catastrophic harm. The National Intelligence Estimate stated that the world is well off-track to meet the Paris Agreement’s goals. While the Glasgow Climate Pact keeps the 1.5 goal alive, it is hanging by a thread. To have a chance of meeting this 1.5 goal, the world has just 98 months to cut worldwide GHG emissions in half. That’s not impossible, but it will require transformational action this decade …

Read the full article.

 

Professor Mark Nevitt Discusses Climate Change and National Security on Lawfare Live

A Discussion on Recent Climate Security Reports

(Lawfare Live | Oct. 28, 2021) Last week, the Department of Defense, Office of the Director of National Intelligence, Department of Homeland Security and National Security Council each released their own reports addressing the issue of climate change as a national security threat. To unpack what’s in the reports and what it all means, Natalie Orpett sat down on Lawfare Live with Mark Nevitt, associate professor of law at Syracuse University College of Law, and Erin Sikorsky, director of the Center for Climate and Security and director of the International Military Council on Climate and Security. 

Lawfare recently published Professor Nevitt’s article on the topic: “What You Need to Know About the New Climate Security Reports.”

Listen on Apple Podcasts.

 

Professor Mark Nevitt: What You Need to Know About the New Climate Security Reports

(Lawfare | Oct. 26, 2021) Last week, the Department of Defense, Office of the Director of National Intelligence, Department of Homeland Security and National Security Council released four distinct reports on the effects of climate change on national security.

These reports were issued pursuant to requirements established in two executive orders issued by President Biden earlier this year: Tackling the Climate Crisis at Home and Abroad and Planning for the Impact of Climate Change on Migration. These four reports build off the Pentagon’s recent Climate Adaptation Plan and the Department of Homeland Security’s Climate Action Plan, issued in September and October, respectively. Read in conjunction with the U.N. Intergovernmental Panel on Climate Change’s Sixth Assessment Report, the four reports present a full, albeit bleak, picture of a climate-transformed world.

These reports—particularly the National Intelligence Estimate (NIE)—offer a clear-eyed analysis of the climate threats facing the nation and world. The NIE is produced by the National Intelligence Council, the most senior intelligence analysts with deep expertise on future threats facing the U.S. and the rest of the world. It should be mandatory reading for all security professionals. It is also a first-of-its-kind document, summarizing the consensus view of the U.S. intelligence community in a candid, forthright manner.

Several broad climatic themes emerge from these reports. I’ve highlighted the following toplines below, with a particular focus on the NIE’s blunt analysis of the scope and scale of the climate crisis.

The World Is Far Off Track to Meet the Paris Climate Accord’s Goals

The NIE reaffirms what climate scientists have already warned: The world is off track to meet the Paris climate accord’s goals of keeping the Earth’s temperature from rising 1.5 degrees Celsius above preindustrial norms. Worse, estimates show that temperatures are expected to increase 2.0 degrees Celsius by midcentury. This is the NIE’s key takeaway. 

The Paris climate agreement binds 190 nations to a process that relies heavily on voluntary reporting without a clear, legally enforceable mechanism. The agreement sets a goal of “limit[ing] the temperature increase to 1.5 degrees Celsius above pre-industrial levels” and “holding the increase in global temperature to well below 2 degrees Celsius.” Exceeding this threshold will lead to catastrophic, irreversible harm. Unfortunately, the NIE notes, “current policies and pledges are insufficient to meet the Paris Agreement’s goals.” Several key judgments flow from the NIE’s assessment that the world is poised to blast through these temperature thresholds. For example, with a 2.0 degree rise, 99 percent of coral reefs will suffer long-term degradation. This eliminates an entire ecosystem serving 500 million people who rely on coral reefs for economic and food security. And with a 2.0 degree rise, envision an ice-free Arctic summer every five years, increasing competition over resource and transit route access. 

The NIE’s blunt assessment provides sobering context for the upcoming U.N. Climate Change Conference in Glasgow, which now takes on an increased importance. How the NIE’s assessment will shape climate negotiations at Glasgow remains to be seen, but it is now impossible to deny the destructive climate emissions trajectory …

Read the full article.

Professor William C. Banks Helps CNN Explain Steve Bannon 1/6 Subpoena

College of Law Professor Emeritus William C. Banks was interviewed by CNN on Oct. 19, 2021, about former Donald Trump advisor Steve Bannon being held in contempt of a subpoena by the House of Representatives committee investigating the Jan. 6, 2021, attacks on the Capitol.

His interviews were seen during The Lead with Jake Tapper and The Situation Room—watch an ABC syndication of the interview:

Explains Banks, “We can go up and down the federal court hierarchy multiple times—so, District Court, Court of Appeals, and even the United States Supreme Court could potentially hear one of these cases.

“Historically, one of the remarkable things about the clash between the executive and the legislature in this kind of setting, involving executive privilege and congressional demands for information, is that almost all of the time the parties have negotiated a settlement.”

ABA Podcast with the Hon. James E. Baker Available (Parts 1 and 2)

The Centaur’s Dilemma with Judge James Baker (Part 1)

Artificial Intelligence (AI) is not a single piece of hardware or software, but rather a constellation of technologies. This week, hosts Elisa and Yvette are joined by James Baker, an expert in national security law and process, to discuss his recent book, The Centaur’s Dilemma: National Security Law for the Coming AI Revolution. Together, they break down the risks and benefits of AI application. Will AI increase the likelihood of conflict? And how can we reap the benefits of AI for broader national security purposes without losing control of the consequences?

The Centaur’s Dilemma with Judge James Baker (Part 2)

In Part 2 of their discussion on the risks and benefits of AI in national security, hosts Elisa and Yvette chat with James Baker about the future of AI policy. What is the appropriate level of human control in different AI contexts? Where are we with autonomous weapons applications? And what critical AI conversations do lawyers and policy makers need right now? James Baker covers all this and more in his recent book, The Centaur’s Dilemma: National Security Law for the Coming AI Revolution.

The Centaur’s Dilemma

China, Climate Change, Credibility: Why It’s (Finally) Time for the US to Join the Law of the Sea Convention

By Professor Mark Nevitt

(Just Security | Sept. 23, 2021) With the world’s most powerful Navy and largest exclusive economic zone (EEZ), the United States is arguably the leading maritime nation. Yet the United States has failed to join the United Nations Convention on the Law of the Sea (UNCLOS), the “Constitution of the Oceans” that codifies key principles for freedom of navigation, rule of law, and environmental issues for more than 70 percent of the earth. Since it opened for signature in 1982, a vocal minority of strident senators have thwarted U.S. ratification. Nevertheless, UNCLOS accession enjoys the support of a remarkably diverse coalition of American military, environmental, and industry leaders. As the United States resets its global agenda, it’s finally time to join the Law of the Sea Convention.

Indeed, the recent U.S. submarine deal with Australia highlights the importance of UNCLOS. As these nuclear submarines are built and delivered, they will serve as a counterweight to China’s excessive maritime claims, and uphold maritime rule of law and freedom of navigation – as enshrined in the law of the sea.

Today, 167 states and the European Union have joined UNCLOS, a testament to the treaty’s status and broad international acceptance. The U.S. absence at the table is more perplexing than ever, considering the emergence of three issues that will define international maritime governance in the 21st century. I label these issues the “Three Cs of Law of the Sea” – (1) China, (2) climate change, and (3) credibility. These three issues are coming into clearer focus as the United States resets its foreign policy and security posture after the post-9/11 era.

1. China. China’s maritime claims over an enormous swath of the South China Sea, based on an anachronistic “Nine-Dash Line,” are well-known. China invests enormous resources in building up contested “rocks” and “low tide elevations” into artificial islands. These excessive maritime claims are antithetical to core law-of-the-sea navigational provisions, maritime delineations, and sovereignty claims. This view was reaffirmed in the 2016 Permanent Court of Arbitration (PCA) decision in Philippines v. China, a resounding defeat for China’s legal claims in the region. But China dismissed the PCA’s ruling, arguing that the international tribunal lacked jurisdiction over the matter. The United States is quick to point out that China agreed to submit to the PCA’s jurisdiction in accordance with Article 287 of the convention. China brushes aside any such criticism, noting the U.S. status as a non-party. Meanwhile, China’s South China Sea buildup continues apace, and China has refused to back down from its claims.

Earlier this month, a U.S. Navy destroyer, the USS BENFOLD, conducted a freedom-of-navigation operation in the South China Sea, challenging China’s maritime claims at Mischief Reef. And China recently took another step in its maritime brazenness by updating its 1983 “Maritime Traffic Safety Law.” This revision requires foreign vessels “to inform maritime authorities, carry relevant permits and submit to China’s command and supervision.”  This law applies to all Chinese territory, both inside and outside the South China Sea.

While it remains to be seen how this traffic safety law will be implemented, it is inconsistent with core navigational principles codified in UNCLOS. And the South China Sea could serve as a proxy for a larger conflict between the United States and China, a point chillingly made in the recent, bestselling novel “2034” by Admiral (ret.) James Stavridis and Elliot Ackerman. Indeed, while the United States was fighting wars in the Middle East, China developed the largest navy in the world by size, with a force of 350 ships and submarines (the U.S. has 293).

U.S. accession to UNCLOS will not “solve” the South China Sea crisis, but doing so reaffirms the U.S. commitment to freedom of navigation in the region and positions the United States to meet the strategic competition with China. In accompanying U.S. diplomatic protests to China’s excessive claims, the United States highlights the importance of the principles enshrined in the Law of the Sea Convention. Last year, the State Department stated that the United States “stands with the international community in defense of freedom of the seas and respect for sovereignty.” The obvious question:  If these maritime principles are so important, why doesn’t the United States reaffirm them by joining UNCLOS?

2. Climate change. Climate change is fundamentally reshaping the ocean’s physical environment, resulting in a host of unresolved issues. The United States has rejoined the Paris Climate Accord, but there is now a convergence of unresolved maritime and climate governance issues where U.S. leadership is needed.

Consider the Arctic, a region that is warming at two to three times the rate of the rest of the planet, opening up trade routes and the possibility for natural resource extraction. The U.S. Alaskan continental shelf claim may extend out to 600 nautical miles, but as a non-party to UNCLOS, the United States is likely prohibited from making a submission to the Continental Shelf Commission, a key UNCLOS technical body that helps determine the scope and limitation of each nation’s continental shelf. Meanwhile, every other Arctic coastal state (Canada, Denmark, Russia, Norway) has joined UNCLOS. Not surprisingly, they have all made continental shelf submissions. Russia asserts a continental shelf that borders Alaska’s and extends to the North Pole via Lomonosov Ridge. By some estimates, the extended U.S. continental shelf is the size of two California’s, a source of untapped economic potential. As the United States sits on the sidelines, Russia can rejoice at the unforced error and the resulting inability of the United States to avail itself of the Continental Shelf Commission …

Read the full article.

“What We’ve Learned in the Two Decades Since 9/11”: Syracuse Led Podcast and JNSLP Special Issue

In anticipation of the 20th anniversary of Sept. 11, 2001 terrorist attacks on the United States, the Institute for Security Policy and Law asked, How could we honor the memory of 9/11 and contribute to a greater good?

SPL Director the Hon. James E. Baker settled on a series of lessons-learned essays to be published in the Journal of National Security Law and Policy, drafted to inform the future rather than to adjudicate the past.

To lead this project, Baker asked Distinguished Fellow-in-Residence Matt Kronisch, who has joined SPL for 2021-2022 on secondment from the US Department of Homeland Security.

“Matt compiled a remarkable line-up of 20 authors, whose essays are clear, short, direct, and geared toward policy and legal implementation,” says Judge Baker. “They also represent a cross-section of practitioners and thought leaders.”

To announce the Special 9/11 Edition of JNSLP, SPL hosted a 9/11 Remembrance Webinar/Podcast in coordination with the ABA Standing Committee on Law and National Security with ABA President Reggie Tucker, followed by a conversation with Amb. Anne Patterson, former Under Secretary of Defense for Intelligence Michael Vickers, and Professor Sahar Aziz.

Professor William C. Banks Publishes 2021-2022 National Security Law/Counterterrorism Law Supplement

Along with his co-authors, Professor Emeritus William C. Banks has published the 2021-2022 Supplement to his essential casebooks National Security Law (7th ed., Wolters Kluwer) and Counterterrorism Law (4th ed., Wolters Kluwer).

The 2021–2022 Supplement will help students and teachers stay up to date with national security and counterterrorism developments during the coming academic year. By including the most important recent cases, legislation, and executive branch actions, the new Supplement also underscores the critical work that lawyers do to keep this nation both safe and free.

The Supplement is co-authored by Stephen Dycus, Emily Berman, Peter Raven-Hansen, and Stephen I. Vladeck.

Recent developments addressed in the 2021-2022 Supplement include:

  • Legal issues arising from the COVID-19 pandemic
  • Fallout from the Mueller Report
  • US–Mexico border wall, emergencies, and related issues
  • Extraterritoriality and cross-border shootings
  • Russian interference in US elections
  • Congressional access to Executive Branch information
  • Anti-Riot Act prosecutions and domestic terrorism
  • The January 6 attack on the US Capitol
  • The next generation of Guantánamo litigation