National Security Law

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.

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

“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

Climate Change & National Security

Syracuse University Institute for Security Policy and Law’s research on climate change and national security draws on the work of Professor Mark Nevitt, whose scholarship has appeared in the Journal of National Security Law and Policy, Washington University Law Review, Boston College Law Review, Georgia Law Review, Cardozo Law Review, Harvard Environmental Law Review, and elsewhere.

Sub-topics include emergency powers, environmental law, geopolitics, international security, managed retreat, and military law and policy.

Selected Articles

“The Climate-Security Century: Three Climate Hotspots.” Fletcher Security Review, 8 (2021)

“Is Climate Change a National Emergency?” UC Davis Law Review, 55 (forthcoming 2021)

“Is Climate Change a Threat to International Peace and Security?” Michigan Journal of International Law (forthcoming 2021)

“The Remaking of the Supreme Court: Implications for Climate Change Litigation.” Cardozo Law Review, 42

“On Environmental Law, Climate Change, and National Security.” Harvard Environmental Law Review, 44.

“Could Official Climate Denial Revive the Common Law as a Regulatory Backstop?” Washington University Law Review, 96 (2018). (With Robert V. Percival.)

“Polar Opposites: Assessing Environmental Law in the World’s Polar Regions.” Boston College Law Review, 59 (2018). (With Robert V. Percival.)

“The Commander in Chief’s Authority to Combat Climate Change.” Cardozo Law Review, 37 (2015).

Selected Blogs

Lawfare

Key Takeaways From the Glasgow Climate Pact | Nov. 17, 2021

What You Need to Know About the New Climate Security Reports | Oct. 26, 2021

Just Security

China, Climate Change, Credibility: Why It’s (Finally) Time for the US to Join the Law of the Sea Convention | Sept. 23, 2021

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

NATO’s Renewed Focus on Climate Change & Security: What You Need to Know | June 2021

NATO’s Renewed Focus on Climate Change & Security: What You Need to Know

Is Climate Change a National Emergency? | February 2021

Is Climate Change a National Emergency?

Climate Change, National Security, & the New Commander-in-Chief | December 2020

Climate Change, National Security, & the New Commander-in-Chief

Wharton Climate Solutions

As We Adapt to Climate Change, Legal Doctrine Must Also Adapt | July 2019

As We Adapt to Climate Change, Legal Doctrine Must Also Adapt

Listen to National Security Professionals on Climate Change | June 2019

Listen to National Security Professionals on Climate Change’s Risks

Selected Podcasts

A Discussion on Recent Climate Security Reports | Lawfare Live! (Oct. 29, 2021)

Climate Security and the Changing Landscape of Threat Part 1 | ABA National Security Law Today Podcast (2019)

Climate Security and the Changing Landscape of Threat Part 2 | ABA National Security Law Today Podcast (2019)

Where Does the Defense Department Really Stand on Climate? | Kleinman Center for Energy Policy (2019)

ABA Podcast: 1L Meghan Steenburgh Discusses National Security Concerns with Professor William C. Banks

Critical Issues in National Security Law

(ABA Law Student Podcast | April 20, 2021) In the daily onslaught of news from all corners of the globe, it is sometimes difficult to decipher the implications of current events within our own country.

From the pandemic, to cybersecurity, to international relationships, linking current events and national security interests to law helps us understand our country’s responses to the things we see in the media. ABA Law Student Podcast host 1L Meg Steenburgh talks with Professor William Banks of Syracuse University about the most critical national security issues facing our nation both at home and abroad, including China tensions, nuclear weapons concerns worldwide, the Jan. 6 Capitol riots, and more.

William C. Banks is a Syracuse University College of Law Board of Advisors Distinguished Professor and Emeritus Professor at the College of Law and the Maxwell School as Professor of Public Administration and International Affairs.

Listen to the podcast.

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.

 

Professor Mark Nevitt: Is Climate Change a National Emergency?

(Just Security | Feb. 25, 2021)  Members of Congress recently introduced legislation mandating the declaration of a national climate emergency, while Senator Chuck Schumer (D-NY) invited President Joe Biden to declare climate change a national emergency. Reaction to these calls for a climate emergency has been mixed. Some environmentalists cheered. Others argued that using emergency powers to address climate change won’t help Biden fight it and would pose an unacceptable risk to democratic governance. 

These criticisms are not unfair, and they deserve careful consideration. But in light of the current, sobering state of climate science as well as the scientists’ call to take transformational action this decade, a climate national emergency should not be dismissed out of hand.

To be sure, declaring a climate emergency will not “solve” the climate crisis, and it shouldn’t be a substitute for legislative efforts and the work of the international Paris Climate Agreement (which the United States recently re-joined). It would, however, send a powerful signal from the White House about the urgency of the climate crisis—while also activating several legal authorities that could be put to work immediately. It would also reflect reality. A legal climate emergency acknowledges what climate scientists and experts already know: We are in a state of planetary emergency.

Climate Change: The One-Shot Problem

Climate change is unlike any problem facing the nation and the world: It has been aptly described as the “mother of all collective action” problems and a “super-wicked” problem.

Climate change is complicated by a unique temporal characteristic that penalizes inaction. Because greenhouse gas (GHG) emissions stay in the atmosphere for decades, dithering on climate action imposes escalating costs that rise over time. Unlike other thorny problems (e.g. health care, immigration), we may lack the luxury of ever coming back to the political system for a climate retry in the future—this is the so-called “one shot” problem. At some point, the effects of climate change will be too acute, have had too much impact, or be too late to stop or reverse. Climate scientists exclaim that now is the time for political leaders to take our “climate shot” or risk irreversible, catastrophic harm, not just to Americans, but to humans as a species …

Read the full article.

 

Hon. James E. Baker Featured on Ipse Dixit Podcast

Host Brian L. Frye and Institute for Security Policy and Law Director the Hon. James E. Baker discuss Baker’s new book “The Centaur’s Dilemma: National Security Law for the Coming AI Revolution”(Brookings, 2021).

Baker begins by explaining why he thinks artificial intelligence requires us to think about the relationship between people and machines in new ways. He describes some of the national security implications of artificial intelligence technology and its implementation. And he reflects on how policymakers should think about those questions.

Listen to the podcast.

Hon. James E. Baker Interviewed on New Books Network

The Centaur’s Dilemma: US National Security Law for the Coming AI Revolution

By Kyle Beadle | New Books Network

From facial recognition to online shopping, artificial intelligence has become the backbone of the internet and has led to an unprecedented extraction and utilization of personal data. As a result, AI has rapidly outpaced existing free speech, privacy, and national security law.

In The Centaur’s Dilemma: National Security Law for the Coming AI Revolution (Brookings Institute Press, 2020), Judge James E. Baker deploys his extensive experience in national security law to argue for AI regulation through legislation …

Listen to the interview.