Law and National Security Info 2/12

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AMERICAN BAR ASSOCIATION

STANDING COMMITTEE ON LAW AND NATIONAL SECURITY

INFORMATIONAL REPORT TO THE HOUSE OF DELEGATES

Mission

The Standing Committee on Law and National Security is focused on educating the profession and the public about the relationship between law and national security. The Committee engages audiences in informed discussion and debate on topics ranging from cybersecurity, to national security reform to debate over due process and detention. The activities assist policymakers, educate lawyers, both in and out of government, the public and the media and enable the Committee to make recommendations to the ABA.
50^th Anniversary

The Committee is eagerly looking forward to its 50^th anniversary which will occur in 2012, making it the oldest Standing Committee in the American Bar Association. Planning is underway to honor this landmark event throughout the course of the year, with a series of programs, publications and events linked to our broader anniversary theme. One of our objectives is to create an anthology of classic national security and national security law writings and doctrines from the past 50 years and to release it in the fall of 2012 during our Annual Review of the Field Conference. In addition we plan to recognize the many individuals and organizations that have helped to establish the field of national security law and those who continue to help us uphold the integrity of the Committee.

21^st Annual Review of the Field of National Security Law Conference

On December 1-2, 2011, the Standing Committee held its “21^st Annual Review of the Field of National Security Law” with the largest attendance record to date – 525 attendees including an increase of military and young lawyers as well as the entire legal offices of the CIA, NSA, FBI, DOJ National Security Division, and Department of Homeland Security. Cosponsored by the Center for National Security Law at the University of Virginia School of Law, and the Center on Law, Ethics and National Security at Duke University School of Law, and the Center for Law and National Security at Georgetown Law, the conference again offered MCLE Credit, including an ethics component. This conference continues to draw a unique audience from the intelligence and law enforcement communities who otherwise might not attend ABA conferences. Keynote addresses were delivered by Harold Koh, State Department Legal Advisor, BG Mark S. Martins, USA, JAGC, Chief Prosecutor, DOD Office of Military Commissions, and DHS Deputy Secretary Jane Holl Lute. General Martins delivered a passionate speech on using all instruments of national power and authority to counter modern threats. He closed by adding that ‘constraints founded in law and principle enhance rather than curb the effectiveness of an institution because they strengthen its legitimacy and that is the core of the American Bar Association.’ All panel discussions and keynote addresses were podcast and are available to download from our website – www.abanet.org/natsecurity.
The Committee has also released the workshop Summary Report from the “Project on National Security Reform (PNSR)” on navigating the legal challenges of national security transformation, now available on our website.
In September of this year, the Committee conducted the second annual seminar on the pedagogy of teaching national security law -- approaches and issues, a “Lawyer Jurga.” The purpose was to bring together academics, practitioners, and instructional communities from our nation’s law schools, educational legal centers, military and intelligence legal training institutions, military academies, and the National Defense University to discuss the methods, tools, and processes of teaching national security law. The 2012 Lawyer Jurga will be held at Syracuse University College of Law on September 14-15, and will focus on “The Intersection of National Security Law and International Affairs.”

Programs

The Committee’s popular and timely breakfast and late afternoon programs continue to draw a large audience and attract a great deal of press. Recent topics have included the “new threat matrix of digital espionage, crime and warfare,” with Joel Brenner, former Director of the National Counterintelligence Executive, and another program offering a retrospective look at 9/11 ten years later. In addition and at the request of several House and Senate staff members, the Committee sponsored an afternoon panel discussion in the Capitol on The Role of Congress in Authorizing the Use of Force with Harvey Rishikof, Committee Chair; Deborah Pearlstein, Princeton University; Daniel Silverberg, Senior Deputy Chief Counsel, Minority Staff, House Committee on Foreign Affairs; Suzanne Spaulding; Benjamin Wittes, The Brookings Institution; and Roger Zakheim, Majority Staff, House Committee on Armed Services. The program was cosponsored by the ABA Committee on Governmental Affairs.

Publications

In August of 2011, the Committee released its latest book, “The Intelligence Community Law Sourcebook.” This second edition includes new Intelligence Community law materials as well as legal commentary on Cybersecurity Law, Counterintelligence, Domestic Intelligence, and National Security Investigations in the Private Sector. Contributing authors include the former General Counsel for the National Security Agency (NSA), the former U.S. National Counterintelligence Executive (NCIX), the first General Counsel of the United States Department of Homeland Security (DHS), and a former Anti-Terrorism Advisory Council (ATAC) Federal Prosecutor who was assigned to a Joint Terrorism Task Force (JTTF). Already the books have been ordered by almost every law school in the country and the Department of Justice National Security Division has ordered 35 copies, one for every lawyer in their division. The plan is to continue this book as an annual publication both in hard copy and as an e-book.
Additional publications in the coming year include a second “Patriots Debate” book building on our first book published in 2007 but will address other national security topics including national security letters, cybersecurity, information policy, Guantanamo/detainment and a variety of other topics.  Committee members Stewart Baker and Harvey Rishikof are co-authoring this book, which will include an accompanying blog site. We hope to make the book available again in hard copy and as an e-book. The book will be published through ABA publishing, and marketed through the ABA, and the Committee’s website and featured in the ABA Journal.
The Standing Committee is also working with the Northwestern University Medill School of Journalism to create a National Security Law Manual for Journalists.  This project will create a curriculum for journalism students and journalists who specialize in national security matters and is due out in early 2012. This is the first of its kind and will again be published with the ABA Publishing Division.

Cybersecurity Legal Task Force

The mission of the Cybersecurity Legal Task Force is to advance a national consensus on our legal landscape and foundation and make specific recommendations for action. Using key legal issues, we have created three categories, although there is clearly overlap among the issue areas:

1. Legal issues applicable to the detection of and defense against cyber crime, espionage, or attacks;

2. Legal issues related to cooperation, collaboration, and information sharing between government entities (including within and between the federal and, state/local/tribal levels), between government and the private sector, and between private-sector entities;

3. Legal issues governing the response to cyber crime, espionage, or attacks.

The Legal Task Force will bring together legal, technical, and policy experts to identify and analyze the most important legal issues in each of these categories. We have identified five goals:

1. Provide a baseline understanding of the current threat environment and current national capabilities as a basis for establishing the problems that policy and law need to address

2. Describe the existing policy landscape, challenges, and opportunities as related to the legal framework.

3. Describe the existing legal landscape, at the national and international levels, including surveying the studies already conducted, analyzing conclusions drawn to date, and clearly presenting legal conclusions.

4. Analyze impediments that prevent the nation from clearly setting forth and applying a legal framework to guide and enable appropriate cybersecurity efforts in the public and private sectors.

5. Clearly describe the current legal landscape and publish recommendations and options for

lawmakers, those responsible for policy, and other executives to advance a national consensus

and move forward on implementing an effective legal framework.
The Standing Committee held its fall committee meeting in Washington on December 3, 2011, following the Annual Review Conference. Much thought and preparation is underway for the celebration of the Committee’s 50^th anniversary which will be in 2012. The next committee meeting will be held in the spring of 2012.
Respectfully submitted,

Harvey Rishikof

Chair, ABA Standing Committee on Law and National Security

February 2012