SPL Blog

Symposium Report: National Security Law and the Coming AI Revolution

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By the Hon. James E. Baker, Director, SPL

On October 29, 2020, Georgetown CSET and the Syracuse University Institute for Security Policy and Law sponsored a symposium for national security law practitioners titled “National Security Law and the Coming AI Revolution.” The discussants—lawyers, policymakers, and technologists—addressed the following topics:

  • AI as a constellation of technologies;
  • AI and the Law of Armed Conflict;
  • Al ethics, bias, data, and principles;
  • AI and national security decision-making; and
  • The role of law and lawyers.

Two of the discussants have gone on to senior national security technology posts in the Biden Administration. Former CSET Founding Director Jason Matheny is now Deputy Assistant to the President for Technology and National Security, among other titles. Tarun Chhabra is now Senior Director for Technology and National Security on the NSC staff. Other senior discussants continue their important work on AI at PCLOB, JAIC, the Naval War College, and the Office of Naval Research, and in academia and industry. A list of discussants can be found in the symposium report.

The event drew more than 180 attendees. To make the discussion available to a larger audience, the sponsors summarized many of the observations in the report. The following collective themes emerged from the panels:

  • AI will transform national security practice including legal practice. National security will be better served with the meaningful, thoughtful, and purposeful application of law and ethics to AI. It is not an either-or choice between security and law and ethics. Whatever we do to further law and ethics helps ensure our competitive advantage by improving accuracy, efficacy, and confidence in the results.
  • Policymakers, commanders, and technologists need to understand law so that they can spot issues and create the time and space to embed law and ethics in AI applications. If the government waits to apply law and ethics at the use or decision point, it may be too late to meaningfully influence outcomes. Therefore, as we consider and apply the concept of human-machine teaming, we should pay equal attention to teaming between lawyers, policymakers, and technologists to make purposeful legal and ethical AI choices.
  • It is time for national security practitioners to move from bromides and principles to the application of those principles to specific AI applications. Negotiations about AI ethics and norms will need to be on a case-by-case, scenario-by-scenario basis to be meaningful.
  • Fundamentally, AI is a computer algorithm designed to “predict optimal future results based on past experience and recognized patterns.” It is the task of policymakers to determine whether that AI or a human has the authority to act on those predictions and make decisions.
  • AI is both nimble and brittle. It has the potential to adapt in super dynamic, unstructured situations; it has the potential to adapt at machine speed and in the presence of overwhelming incoming data; and it does not feel fear or fatigue. However, the AI systems we have today are not yet safe, secure, or reliable enough to process real-time data in rapidly changing environments, then update themselves and learn in real time, and thus be used for targeting or other immediate decisional support. This is especially true because the enemy will be targeting the AI systems.
  • Part of taking responsibility for AI, including mitigating against AI bias, means involving stakeholders in all stages of development and, where possible, deployment. However, as we employ more and more autonomous systems, it will become increasingly difficult to dedicate time and resources to refining the decision-making of each of those systems. In other words, with the proliferation of autonomous systems, we may be less likely to engage in the type of meaningful human-machine teaming that ethical deployment would require.
  • Law and ethics must be applied throughout an AI lifecycle. Practitioners should think intentionally about issues such as bias from the beginning of a project. AI often fails when conditions change, and conditions will change in the national security world. Ethical failures can occur at any point in an AI software program. Moreover, large organizations, such as DOD, face the risk that a thousand-to-one or one-in-a-million type problem will occur.
  • Lawyers should distinguish between law, policy, and ethics. Without clarity, government actors may be discouraged from applying higher ethical standards lest those standards later become construed as legally binding as distinct from wise policy choices.
  • National security lawyers working in a classified environment have a heightened responsibility to be exceptionally conscious of bias.

The sponsors encourage readers of this blog to review the report, which offers detail and nuance on the themes identified above. Thank you.

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Professor Mark Nevitt: Should the COVID-19 Vaccine Be Required for the Military?

By Mark P. Nevitt

(Just Security | April 12, 2021) By some estimates, approximately one-third of U.S. military service members have opted out of the COVID-19 vaccine. Some think that number could be higher, for example, according to a new report, nearly 40 percent of U.S. Marines are declining vaccinations. An earlier December report from the nonprofit advocacy group Blue Star Families estimated that nearly half of military members would decline the vaccine if offered. In response, six members of Congress recently sent a letter to President Joe Biden, asking him to make the vaccine mandatory for all military service members.

In what follows, I address three questions that have arisen from the U.S. military’s ongoing efforts to vaccinate members of the armed forces:

  • Can military members be legally required to receive the COVID-19 vaccination?
  • What lessons from earlier military vaccination efforts (e.g. anthrax) can be applied to COVID-19?
  • What is the impact on vaccination refusal on military readiness?

Can military members be legally required to receive the COVID-19 vaccination?

Ultimately, yes—but this answer requires a bit of nuance and process. As of this writing, the president and defense secretary have not ordered mandatory vaccination for the military (or the general public for that matter). COVID-19 vaccination remains strictly voluntary for all military service members, consistent with earlier pledges by Biden that he would not make vaccinations mandatory. But that could change, particularly for deployed service members who work in tight quarters where infection rates can spike quickly. For now though, DoD appears committed to the voluntary vaccination approach.

As a statutory matter, in 2003, Congress passed a law (10 U.S.C. § 1107a) that requires informed consent prior to military members receiving vaccinations issued under an emergency use authorization (EUA). All three COVID-19 vaccinations being used in the United States —Moderna, Johnson & Johnson and Pfizer—are being administered under an EUA. And all three have not been fully approved by the Food and Drug Administration. By some estimates, full approval may take up to two years.

But, according to the law, the president can waive this informed consent requirement if he determines that it is “in the interest of national security” to do so. While Biden has not done this, some members of Congress have called upon him to do just that.

If this informed consent provision is ultimately waived, military commanders can clearly order military members in their command to receive the vaccine. This is consistent with the “Failure to obey an order or regulation” under the Uniform Code of Military Justice (UCMJ). Even if the informed provision is not waived by Biden, a mandatory military vaccination order may survive challenges in military criminal courts implementing the UCMJ. Federal civil courts would likely scrutinize such a move much more closely. This is based upon prior decisions and the military’s experience in implementing the anthrax vaccination program, which I turn to below.

Relatedly, outside the military context, over 100 years ago, the Supreme Court upheld a local Board of Health’s authority to require smallpox vaccinations during a smallpox epidemic. As Professor Lawrence Gostin at Georgetown Law has previously argued, Jacobson reaffirms the “basic police power of the government to safeguard the public’s health.” This decision, Jacobson v. Massachusetts, has been relied upon during this pandemic to implement mandatory mask wearing and social distancing.

What lessons from earlier military vaccination efforts (e.g. anthrax) can be applied here?

Quite a few. The anthrax vaccine was administered as an “investigational new drug” (IND) in the late 1990s. Congress passed a law in 1998 (10 U.S.C. § 1107), effectively requiring informed consent from military members prior to administration of INDs such as anthrax. This is a different but analogous law to the COVID-19 emergency use authorization. President Bill Clinton signed an executive order in 1999, reaffirming the informed consent requirement and laying out the process for seeking a waiver. But both President Clinton and Bush did not waive the informed consent procedure. The mandatory anthrax vaccination program was administered anyway, although it was started and stopped several times in the early aughts. This was due to issues with the manufacturer’s ability to pass inspections and disagreements about whether the anthrax vaccine was administered consistent with its labeling. Perhaps not surprisingly, orders to take anthrax vaccinations were challenged by military service members in both military and federal courts.

As military commanders ordered anthrax vaccinations, some service members refused, arguing that they had not provided their informed consent to the anthrax inoculation. Federal courts heard civil, administrative, and constitutional challenges, while military judges heard challenges under the UCMJ …

Read the full article.

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Professor Corri Zoli: China Changes Tone as US Changes Administration

By Corri Zoli, Director of Research

A new tone on the part of Chinese Communist Party (CCP) officials is unmistakable. This was evident in the verbal scuffles in Anchorage, AK, over a week ago at the first diplomatic meeting between China and the new Biden Administration. There, human rights and forced labor violations were raised, including with respect to the Uighurs and other Muslim Turkic minorities in Xinxiang, one of the world’s leading cotton producers. 

“These specific reports, data collection, and outreach efforts are unifying international pressure from many angles to force China to address these severe human rights issues.”

What caught the Biden team off guard was senior CCP diplomat Yang Jiechi’s pointed criticisms of the US’s own record on human rights violations (referencing the Black Lives Matter movement, for instance) and its “long-arm jurisdiction” in foreign interventions across the globe, which had also created instability. A clearly more assertive China made international foreign policy observers around the world take notice when President Xi’s delegation told US Secretary of State Antony Blinken that “they don’t have the qualification to say they speak to China from a position of strength.”

Beyond the United States, Chinese officials have recently asserted to other nations, international organizations, and now corporations (H&M, Nike, Converse, Under Armour, and others) that the “era of bullying” of China by foreign powers has come to an end. That includes, according to Chinese official statements, the use of sanctions against China (and President Joseph R. Biden Jr. has not yet removed the Trump-era tariffs and sanctions). 

Both Biden’s and former president Donald J. Trump’s secretaries of state (Mike Pompeo, officially on his last day in office) have publicly accused China of carrying out a genocide against the Uighur and other minority groups, and Canada and the Netherlands have agreed. A block of 30 countries, including the European Union, which has not imposed sanctions since the 1989 Tiananmen Square crackdown—as well as the UK, US, and Canada—have recently imposed new sanctions on China with those allegations in mind.

In addition to the EU and US coordinated response, today, the UN’s High Commissioner for Human Rights Working Group on Business and Human Rights used their mandate to express their own deep concerns that the Chinese government was violating what they see as emerging obligations to follow the United Nations Guiding Principles on Business and Human Rights. What appears to have prompted their announcement is increasingly reliable accounts of Uighur treatment (in part from BBC, Australian Strategic Policy Institute, and Human Rights Watch reporting) and results from the UN Human Rights Working Group’s own investigation into the abuses of Uighurs, which have “tainted” China’s cotton supply chains. 

The UN Working Group has reached out to many private businesses in and outside of China who are part of these supply chains involving Xinxiang, as well as 13 other governments that may be implicated in these alleged abuses (and to ensure businesses in their territory respect all human rights throughout their operations). These specific reports, data collection, and outreach efforts are unifying international pressure from many angles to force China to address these severe human rights issues. UN Secretary General António Guterres is currently holding “serious negotiations” with China to gain unfettered access to the Xinjiang region to verify reports of Uighur treatment and persecution.

In response, Chinese officials have called for its own consumer base to boycott Western brands, especially those that have criticized the Chinese government in light of its use of forced labor, detention, reeducation camps, and other reports of crimes against the Uighurs. 

China also has flooded social media with information campaigns to control the narrative and highlight other nation’s human rights’ abuses (including slavery), while trying to persuade their domestic population. Chinese “netizens” and the Chinese Communist Youth League, for instance, also have fought back, telling Western firms that major Chinese e-retailers will remove all of their products from online stores, noting on H&M’s official Weibo account, for instance: “Are you ready [to] completely disappear in China?” and “Countdown to the beginning of withdrawing from the China market,” as reported by Human Rights Watch.

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Professor Robert Murrett: China Has a Large and Growing Navy—What is the Rest of the Story?

By Robert B. Murrett, Deputy Director, Institute for Security Policy and Law

(Military Times | March 22, 2021) There is a good deal of interest these days in the growth of the Chinese navy, known officially as the Peoples Liberation Army Navy (PLAN). Most of the discussion tends to focus on the steady and significant increase in the inventory of PLAN ships and submarines, as well as the gradual expansion of the operational reach of these ships.

However, the other dimensions of seapower that constitute the real effectiveness of any navy are not always sufficiently considered. In the case of China, an assessment of strategy, operational proficiency, regional and global naval power, and leadership deserve additional emphasis.

The PLAN “order of battle” — the total number of ships, submarines, naval aircraft and supporting infrastructure continue to make gains, which will likely continue in future years. With this as a baseline, the strategic, operational and tactical proficiency of the Chinese navy has also made progress in parallel, with varied results. At the strategic level, the Chinese navy has attempted to strike a balance between regional focus on the western Pacific and adjoining waters, and other, sustained operations in distant waters.

While it is accurate that the Chinese navy has expanded the scope of their operations over the past decade, they do not have sustained global presence and reach. Concentrating maritime power in areas such as the East China Sea and South China Sea has certain advantages, although the cumulative impact of years of at-sea time and tough challenges in the world’s oceans is an important barometer of capability. The PLAN will achieve the proficiency associated with extended maritime employment in time, but a strategy which allows both a regional and global deployment posture has yet to be fully realized.

As China’s strategic naval posture is dealt with, operational-level skills associated with complex warfare challenges are a second important standard. Integrated anti-surface, anti-submarine and anti-air operations are fundamental and can only be gained by hard experience. These warfare basics should be viewed in the context of operational-level integrated joint and combined command, control and communications, and a sober assessment of Chinese capability and experience in this area cannot be overemphasized …

Read the full article.

 

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The Centaur’s Dilemma Reviewed by APSA Law and Politics

By Tobias T. Gibson, Department of Political Science, Westminster College

Judge James E. Baker, Director of the Institute for Security Policy and Law and Professor of Law at Syracuse Law School, begins THE CENTAUR’S DILEMMA with two truisms. The first is that artificial intelligence (AI) is widespread and will only become more ubiquitous. The second is that law is rarely, and perhaps never, in line with the technology that it is supposed to govern.

As described by Baker, the approaching dilemma is that of decision making, especially in the realm of national security, that will combine human and machine—like the half human, half horse centaur of mythology. Yet, while this is imminent, and in some ways a current issue—think of your reliance on the Waze app—Baker’s stated goal of this book is to allow generalists, including policymakers, to debate and design a legal framework. The time is now because allowing time for debate, including a wide variety of stakeholders, will allow lawmakers “to make informed, purposeful, and accountable decisions about the security use of governance of AI” (pp. 5-6).

The first four chapters of the book establish the problems and provocations of artificial intelligence in a national security setting. To be sure, uses and issues related to AI will certainly arise in areas of policy spaces related to traditional national security spheres, such as military and intelligence. Fighter pilots, autonomous vehicles—whether air based “drones,” or increasingly land and water-based ones—and international surveillance tools and data collection all will be enhanced by cooperative work between human and AI. Baker’s work is focused on establishing a protocol of law and policy that will not allow the cooption of decision making by the coming, and many would argue present, AI revolution.

However, he also adds that the use of AI in everyday items, the so-called Internet of things, also needs to be governed to prevent excessive action on the part of the government and corporations that build smart cars, smart toasters, smart coffee makers, smart refrigerators, and smart phones. As Baker notes, a series of recent Supreme Court cases, discussed below, have led to bright lines in the ways that collected data is used by law enforcement. However, there is much to discern and develop, as AI technology advances beyond Facebook and Amazon algorithms and becomes far more ubiquitous.

That said, however, some of the most directly applicable and, quite frankly, most developed portions of the proposed framework are found in case law, much of which is seminal …

Read the full article.

 

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Fashion Looks to Paris (Agreement): Professor Mark Nevitt Speaks to WWD

What Rejoining the Paris Agreement Signals to Fashion

(WWD | Jan. 21, 2021) While the U.S. rejoining the Paris Agreement is just the beginning of a bold rush into environmental stewardship, the action should not be overlooked because of the message it signals to fashion.

“I think there will be more focus on all industries that contribute to climate change, to include fashion.”

Why does this brush of the penstroke matter?

A Cross-Industry Sustainability Push

“Rejoining the Paris Agreement is a signal to the world that the U.S. ‘is back’ on the international climate stage,” said Mark Nevitt, an associate professor of law and expert in environmental and climate change law at Syracuse University’s College of Law. “The U.S. is the world’s largest historical greenhouse gas emitter, and U.S. leadership is crucial for making international climate progress and reducing our emissions. As the Senate is 50-50 and there is a slim Democratic majority in the House, passing bold climate legislation will be challenging.”

It is a 30-day process that began Wednesday for the U.S. to officially rejoin the agreement, but the process of undoing previous environmental rollbacks and rewriting law to realize the bold pledge of making the country carbon-neutral by 2050 is more daunting.

Nevitt believes the Environmental Protection Agency will be the main lever under the Biden-Harris administration “to push [Biden’s] environmental agenda,” both in communication and action. And as for the largely unregulated and highly polluting fashion industry, Nevitt foresees it in the mix of broader industry overhaul.

“I think there will be more focus on all industries that contribute to climate change, to include fashion. Look for the new Environmental Protection Agency administrator, Michael Regan, to push broad sustainability policies across the U.S. economy. For fashion, this will likely highlight the need to reuse clothing, streamlining supply chains to reduce the carbon footprint,” he said. “While only so much can be done by law or regulation, look for a broad push via public communications on sustainability across all industries, to include fashion and its environmental impact” …

What Rejoining the Paris Agreement Signals to Fashion

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Professor Mark Nevitt Asks Four Questions About Capitol Hill Riot

Tragedy at the Capitol: Four Questions that Demand Answers

By Mark P. Nevitt

(Just Security | Jan. 9, 2020) How can the U.S. Capitol, surrounded by one of the largest concentrations of law enforcement and national security personnel in the world, be so quickly overrun by Trump insurrectionists hell-bent on “stopping the steal,” halting our cherished democratic processes, and potentially harming lawmakers?

This tragedy and breach of the Capitol Building on Wednesday is a failure of leadership and planning at the highest levels. A full and comprehensive investigation will be conducted. And it is important not to jump too quickly to conclusions without having a full understanding of the events and decisions that took place that day and the days leading up to it.

Nevertheless, several key questions and themes are beginning to emerge. These must be addressed prior to President-elect Joe Biden’s inauguration on Jan. 20.

These questions center around the difficulty in swiftly coordinating a response across overlapping federal, state, and local jurisdictions. Despite being surrounded by the nation’s vast national security and law enforcement apparatus, the U.S. Capitol response appears to have been plagued by and not taking the threat of right-wing extremism seriously. This was further exacerbated by different chains of command, overlapping legal authorities, and complex jurisdictional issue.

I highlight four initial questions to focus on:

  1. Was the District of Columbia National Guard properly deployed and resourced?
  2. What prevented other state National Guards from being expeditiously deployed?
  3. What role do other federal law enforcement have and why did the DC police have to play such a critical role in the Capitol’s defense?
  4. What other assets may have assisted? …

Tragedy at the Capitol: Four Questions that Demand Answers

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Professor William C. Banks Explains Martial Law in UK’s The Daily Express

US election re-run: Right-wing leader demands ANOTHER vote – with martial law in place

(The Daily Express (UK) | Dec. 5, 2020) Tom Zawistowski, leader of We The People Convention, is championing “limited martial law” to complement a re-run of the November election. He described Joe Biden as “an illegitimate president”, adding: “We are not asking for the president to contest the current election results because they are so fraudulent no one can figure out which votes count and which ones don’t because that is exactly what the Democrat/Socialists wanted.”

These claims are disputed and numerous legal challenges put forward by US President Donald Trump have failed …

… Speaking to Express.co.uk, professor William C. Banks of Syracuse University College of Law said: “There is no provision in the US for martial law, and it has not been declared by a US official since the attack on Pearl Harbor in 1941.

“It is widely understood to be available only in the event of a complete breakdown of civil institutions” …

Read the full article.

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“Preposterous:” Professor William C. Banks Speaks to Military Times on Calls for Martial Law

Calls for martial law and US military oversight of new presidential election draws criticism

(Military Times | Dec. 2, 2020) The idea that the U.S. military would oversee a new nationwide presidential election — ordered under martial law by President Donald Trump — is “insane in a year that we didn’t think could get anymore insane,” a defense official tells Military Times.

“Martial law has no place in the United States.”

Yet retired Army Lt. Gen. Michael Flynn promoted that exact idea Tuesday evening when he tweeted a press release from an Ohio-based conservative political organization …

… The idea is “preposterous,” said Bill Banks, a Syracuse University professor with expertise in constitutional and national security law.

“Apart from the fact that state and now federal investigators have found no evidence of election fraud that would change the election outcome, martial law has no place in the United States absent a complete breakdown of civil governing mechanisms,” he told Military Times.

Martial law, he added, “simply has the military in charge, subject only to military orders, not civilian law.”

It has not been invoked in the U.S. “since the attack on Pearl Harbor, and there is no likelihood or justification for martial law now,” said Banks. “Our civilian institutions have, in fact, revealed themselves to be resilient in responding to unprecedented partisan attacks on election administration and vote counting in state and local systems across the United States” …

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Professor Mark Nevitt: Climate Change, National Security, & the New Commander-in-Chief

(Just Security | Dec. 2, 2020) President-elect Joe Biden is 50 days away from assuming office as commander-in-chief. He has committed to taking bold, historic action on climate change and has named climate change one of the four crises facing the United States. He has also pledged to integrate climate change into national security decision-making. This stands in stark contrast to the Trump administration, which questioned the underlying climate science and deleted “climate change” from the National Security Strategy.

What are the president’s authorities as commander-in-chief to “combat” the national security threats posed by the climate crisis?

At the same time, Biden may ultimately face a GOP Senate, depending on the outcome of the runoff elections in Georgia. This would strike a blow to his boldest climate ambitions—and may undermine the passage of comprehensive climate legislation. If this comes to pass, executive branch action will take on heightened importance. Regardless of any legislative effort, the Environmental Protection Agency (EPA) and other administrative agencies will likely reinstitute and strengthen Obama-era regulations to address climate change under existing legal authorities such as the Clean Air Act. But what are the president’s authorities as commander-in-chief to “combat” the national security threats posed by the climate crisis?

In addition to regulatory action under the Clean Air Act and similar authorities, Biden possesses broad constitutional authorities independent of Congress to address the climate-security impacts. I highlight four below, to include:

  1. appointing key personnel that prioritize climate change as a security issue;
  2. reducing our carbon emissions across the federal government;
  3. safeguarding critical national security infrastructure; and
  4. responding to climate-exacerbated conflicts and natural disasters at home and abroad.

Appointing Climate-Security Expertise: Personnel as Policy

First, the Constitution grants Biden broad, Article II appointment powers. His recent appointments of key personnel to national security positions—many of which do not require Senate advice and consent—highlight the growing merger between climate change’s impacts and our national security interests. For example, Biden just announced that former Secretary of State John Kerry will serve as the nation’s first special presidential envoy for climate change (the so-called “climate czar”). Kerry has unique climate experience. As a senator, he played a leadership role in the Senate’s last attempt at climate legislation in 2009. As secretary of state, he played a leadership role in the successful Paris Climate negotiations. Kerry’s new position, which does not require Senate confirmation, will also have a seat on the National Security Council—a historic first. This reflects a mature acknowledgment that climate change serves as both a “threat multiplier” and “catalyst for conflict” that requires integration across national security planning …

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