Law Commons^™

National Security And Federalizing Data Privacy Infrastructure For Ai Governance, Margaret Hu, Eliott Behar, Davi Ottenheimer

Faculty Publications

This Essay contends that data infrastructure, when implemented on a national scale, can transform the way we conceptualize artificial intelligence (AI) governance. AI governance is often viewed as necessary for a wide range of strategic goals, including national security. It is widely understood that allowing AI and generative AI to remain self-regulated by the U.S. AI industry poses significant national security risks. Data infrastructure and AI oversight can assist in multiple goals, including: maintaining data privacy and data integrity; increasing cybersecurity; and guarding against information warfare threats. This Essay concludes that conceptualizing data infrastructure as a form of critical infrastructure …

Quieting The Court: Lessons From The Muslim-Ban Case, Avidan Cover

Faculty Publications

The Supreme Court’s Muslim-ban decision in Trump v. Hawaii and the confirmation of Brett Kavanaugh to the Supreme Court call into question the civil rights litigation enterprise insofar as it challenges U.S. government’s national security and immigration policies. Litigants and advocacy organizations should employ an array of strategies and tactics to avoid the Court’s rulings that almost uniformly defer to, and thus validate, the government’s national security and immigration practices.

This article maintains that The Muslim-Ban Case was a predictable outgrowth of the Supreme Court’s national security-immigration jurisprudence that champions executive power at the expense of marginalized groups, in particular …

Reflections On The Christchurch Massacre: Incorporating A Critique Of Islamophobia And Twail, Cyra Akila Choudhury

Faculty Publications

On March 15, 2019 in Christchurch, New Zealand, a white supremacist entered a mosque full of worshippers and gunned down over 50 people. He was welcomed into the house of worship as Muslim immigrants and converts were about to start their Friday prayers. News of the attack spread quickly across the globe. Social media news feeds and online sources provided near-instantaneous updates. There were calls to prioritize the lives and stories of the victims and survivors. Although there were calls not to glorify or even humanize the shooter, people understandably professed interest in his writings and his motivation. Once it …

Restoring The Balance Between Secrecy And Transparency: The Prosecution Of Nationai Security Leaks Under The Espionage Act, Christina E. Wells

Faculty Publications

This Issue Brief reviews the relationship between secrecy, transparency and accountability in the United States, including the role of anonymous leaks. It also examines the threat that increased Espionage Act prosecutions pose to government accountability and discusses why changes to the Espionage Act are necessary to preserve an appropriate balance between government secrecy and transparency.

Secret Jurisdiction, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

So-called “confidentiality creep” after the events of 9/11 has given rise to travel restrictions that lack constitutionality and do nothing to improve airline security. The executive branch’s procedures for imposing such restrictions rely on several layers of secrecy: a secret standard for inclusion on the no-fly list, secret procedures for nominating individuals to the list, and secret evidence to support that decision. This combination results in an overall system we call “secret jurisdiction,” in which individuals wanting to challenge their inclusion on the list are unable to learn the specific evidence against them, the substantive standard for their inclusion on …

Shari'ah Law As National Security Threat?, Cyra Akila Choudhury

Faculty Publications

This Article examines the recently proposed anti-shari’ah laws of Tennessee, Oklahoma and Arizona. It begins by examining the laws and their justifications and analyzes the 10th Circuit decision in Awad v. Ziriax upholding the injunction against Oklahoma’s Save Our State amendment. It then carefully analyzes the cases that have been cited as examples of shari’ah-creep and reveals that they are actually routine examples of comity and conflicts of law rules applied properly by a properly functioning judiciary. If these laws are not national security measures, what is their true purpose? The Article posits that the new laws are the latest …

Searching For Remedial Paradigms: Human Rights In The Age Of Terrorism, Frances Howell Rudko

Faculty Publications

Nine years after the unprecedented terrorist attacks on September 11, judicial response to various governmental and individual methods of combating terrorism remains deferential and restrained. The courts have heard at least three types of cases brought by advocates for three distinct groups: the alleged perpetrators of terrorism; the victims of terrorist attacks; and third party humanitarian groups. Implicit in the practical question of how to deal effectively with terrorism is the broader consideration which Congress, the President and others must also address: how to respond to the terrorists' extreme human rights violations without violating international humanitarian law.

Cia V. Sims: Mosaic Theory And Government Attitude, Christina E. Wells

Faculty Publications

In CIA v. Sims, the United States Supreme Court held that the CIA could withhold information about controversial government-sponsored psychological experiments in response to Freedom of Information Act (FOIA) requests. The Court reasoned that the requested information would reveal intelligence sources related to national defense, which were specifically protected from disclosure under the National Security Act of 1947. Accordingly, the Court concluded that the CIA could refuse to disclose the information under FOIA Exemption 3, which allows withholding of information “specifically exempted from disclosure by statute.” Numerous scholars assailed Sims, arguing that the Court's broad reading of the National Security …

Fear And Loathing In Constitutional Decision-Making, Christina E. Wells

Faculty Publications

National security crises are particularly difficult on the judiciary. Faced with a threat to the country's integrity, such cases require judges rationally and fairly to weigh this hefty interest against the rights of persons suspected of posing that very threat. Not surprisingly, judges have rarely lived up to this task as many have fallen sway to the same fear and prejudice that gripped the county during these times. Scholars have written extensively about judicial capitulation to fear and prejudice in such well-known cases as Schenck v. United States, Korematsu v. United States, and Dennis v. United States, with some lamenting …

Foreword - Interdisciplinary Perspectives On Fear And Risk Perception In Times Of Democratic Crisis (Symposium), Christina E. Wells, Jennifer K. Robbennolt

Faculty Publications

The articles and essays included or referenced in this volume discuss both the factors that affect decision making in times of crisis and their implications for law and democratic theory. Professor Cass Sunstein's keynote address, Fear and Liberty, noted that psychological biases such as the availability heuristic and probability neglect can skew risk perception, leading to excessive public fear of national security risks and unreasonable curtailment of civil liberties. According to Sunstein, courts, which are typically responsible for protecting civil liberties, often lack sufficient information to assess whether national security concerns justify incursions on civil liberties. Nevertheless, he concluded that …

Questioning Deference, Christina E. Wells

Faculty Publications

This article examines the accepted axiom that courts should defer to the government's actions during national security crises even when such actions potentially violate citizens' constitutional rights. The paper questions two assumptions underlying that axiom - first, that executive officials are best equipped to determine when security needs justify liberty infringements and, second, that judges are particularly unqualified to meddle in security issues, even when civil liberties are involved. Relying on psychological theories regarding the role that fear plays in skewing risk assessment and historical analyses of past crises, the paper argues that times of crisis lend themselves to unnecessary …

Fear And Risk In 'Times Of Crisis': The Media's Challenge, Richard C. Reuben

Faculty Publications

As we have heard time and again during this conference, perspective is a crucial safeguard against the distorting effect of fear. While space and consumer patience may be thin, it is during times of crisis that the media's capacity to provide context becomes most important. This is part of the challenge of risk communication. Editors need to insist on this perspective rather than trying to cut it out if the story still reads, and reporters need to learn how to write about it effectively as well as compellingly. None of these challenges is easy. Institutional reform never is. But I …

"National Security" Information And The Freedom Of Information Act, Christina E. Wells

Faculty Publications

Secrecy regarding national security information is a widely accepted phenomenon. Throughout history, however, such secrecy has proved problematic. Although officials often have credible and legitimate reasons to keep national security information secret, government secrecy initiatives have invariably expanded to encompass information beyond their initial rationale. Over time, we have come to realize the very real problems associated with excessive government secrecy.

Information Control In Times Of Crisis: The Tools Of Repression (Symposium, Privacy And Surveillance), Christina E. Wells

Faculty Publications

This article identifies several tools of information control that occur consistently throughout history. The government does not use all of these tools in every national security crisis. Nor does it always abuse them. However, the patterns that emerge suggest a certain predictability to (1) the government's actions during national security crises, and (2) the potentially negative consequences flowing from them that warrants our attention. Understanding this historical pattern of government action allows one to identify and potentially prevent future problems. This is especially important in the post-9/11 world in which the government has asked for and received controversial powers with …