1 Introduction to the National Security Law as a Field

welcome to episode one of the national security law lectures i'm professor bobby chesney from the university of texas school of law and also the straus center for international security and law at ut and i'm very happy to be joined by professor matt waxman of columbia university who chairs colombia's national security law program matt and are teaming up to bring you what we're calling the national security law lectures simply put it's it's library of lectures on growing array of national security law topics and we hope it's going to be useful to faculty students practitioners and really any person who wants to spend time thinking about what we think is really fascinating area of law we're starting here in this episode with an introduction to the field itself it's from teacher's perspective first matt's going to describe how he organizes the topic and then i'll describe what do and matt without further ado the floor is yours great thanks very much bobby let me go ahead and share my own slides here we go great so let me talk about what is national security law there isn't good formal definition of the field and one reason why it's hard to define is because it's so hard to define national security national security is constantly evolving our understandings of it are evolving and so therefore is the field want to talk about how organize the field what think is good way to to teach it and and then turn it over to bobby to talk about how he organizes it for starters let me mention that usually teach national security law as course in american domestic public law obviously there's lot of international law that's relevant here too law of armed conflict arms control agreements and so on teach those to the extent that they're incorporated into domestic law and i'll try to give some examples of that but usually teach most significant international law dimensions of national security in an entirely different course so organize national security law around three core dilemmas these are core dilemmas that face any democracy first national security threats may require that the executive branch act with speed and agility in alexander hamilton's words in the federalist papers with decision activity secrecy and dispatch so we have structural dilemma second is liberty dilemma sometimes there are difficult trade-offs between security of the nation and individual liberty including freedom of movement free expression privacy and so on to be clear i'm i'm not saying that there is always trade-off there certainly is not but sometimes there is especially with regard to the liberty of specific individuals or groups and then third is secrecy dilemma that sometimes in order to protect national security the government needs to keep secret the details of how it's doing things or even what it's doing at all on the other hand representative democracy is premised on the idea of electoral accountability and that means an informed electorate so how do we how do we mediate that dilemma between secrecy and transparency organize my course around those three dilemmas in part one we spend lot of time talking about the national security powers of each branch of government and then usually do some deep dives into particular areas especially authority to use military force when may the government or which actors in the government may use military force and how may they use military force in part two of the course we do some deep dives into some specific areas of national security and liberty tend to focus myself on detention and electronic surveillance but also using some other examples like free speech and then in in part three we cover the secrecy dilemma by looking at some specific examples like the government's power to classify information and the regulation of covert action that's something that bobby has recorded an entire separate lecture on as as part of of this series i'll just mention before going into some of these examples in my own course like to spend lot of time talking about how all three of these dilemmas have history dating back to the early republic we of course cover lot of the modern applications of these dilemmas but these really are dilemmas that the constitutional framers and the the founding fathers and those who governed in the early republic were wrestling with from the very beginning of the of of the nation we spend lot of time in the class talking about this chart and coming back and back to it and ask whether law is establishing rules or standards based on substantive choices between competing values interests and so on or it's establishing institutional balances or allocations of power which branch is making choices about where to draw lines or how to balance values on which branch or branches is policing whether those lines or balances are being respected and often in this area national security law think the the the big attention is on the institutional axis how is authority allocated especially among the branches inter-branch relations and checks are obviously big focus but also internal allocations of power and checks within the executive branch there are also some interesting issues in this area involving relations between the federal government and the and the states so this is class in constitutional law statutory law administrative law but it's also class about institutional design so turning to my first example of the use of military force if we stick to the constitutional questions the constitution doesn't contain any express substantive limits on the use of force abroad constitutional law is almost entirely along the institutional access it's about allocating power among the branches especially balancing executive unilateralism and congressional checks there's very little judicial review on the at least on the merits of disputes in this area and those few cases that have delved into the merits have generally done so by really deciding the cases on on institutional grounds of course this is familiar law school move where we strike institutional balances also has substantive effects in this case one of the big substantive effects is balance between interventionism and restraint when it comes to using military force empirically think it's very debatable how big the effects on substantive balances between intervention and restraint how big those effects are and why to different institutional balances and i'll talk about some of those some of those issues both the balances and their effects in series of lectures that i'm doing as part of this series all about war powers turning to part two of the course i'll just use electronic surveillance as an example this is an interesting institutional story because think historically it sort of moves left to right on this graphic it moves from lot of executive unilateralism for electronic surveillance especially for national security or foreign relations purposes then congress gets in the game courts get in the game and sort of move the institutional balances back towards the left after 9 11 things move back towards the towards towards executive unilateralism congress reasserts things its power and moves us back along with courts to the right so lot of kind of back and forth left to right as we look at the the history of electronic surveillance we also have some interesting institutional innovations in this area like the the foreign intelligence surveillance court something that bobby speaks lot about in in his lectures on on fisa as part of this series once again where we strike institutional balances also affects some some substantive balances here we're often talking about balancing intelligence collection or intelligence analysis and and privacy rights some of those balances are also those substantive balances are also made in statute or in constitutional doctrine big question think in this area is how well do the checks that we've created on electronic surveillance produce the kinds of substantive outcomes especially privacy protections that we're looking for and then turning finally to part three of the course using just as an example here the regulation of covert action again this is story that moves mostly from left to right you have lot of executive unilateralism following period of reform congress gets in the game with some institutional innovations the creation of congressional intelligence committees special congressional notification requirements that bobby talks about in in in his lectures on intelligence law so big institutional story mostly one here almost entirely about relations between the executive branch and and congress there's big question here about substantive balances too and even question of what are the values that we're trying to to balance when regulating covert action we're mostly talking about how do we strike balances between secrecy of government action or agility of executive branch action with greater scrutiny and we can ask ourselves what do we hope to get out of those either greater secrecy or greater scrutiny are we looking to restrain covert action are we looking to get more effective covert action these are think big questions to explore in this area and like said this is an area in which there's very very little judicial review and let me conclude on that point because it illustrates think an important general one about this field compared to other areas of domestic public law the judiciary is often quite passive in national security law not always there are some huge exceptions to this but often that's the case there are some doctrinal reasons why courts are passive whether questions about whether they'll entertain certain types of national security litigation at all standing doctrine political question doctrine reluctance to recognize bibin's actions in these areas evidentiary doctrines like the state secrets privilege that may result in dismissal of cases and even if courts do reach the merits of issues in national security law they often do so with very high levels of deference towards the political branches so think descriptively one big feature of national security law is that it features courts in much more passive role than in other areas of public law normatively this raises big questions running throughout the class of should courts be playing bigger role it's very common in national security law debates to hear arguments that courts shouldn't be more involved that it's not their constitutional role that they lack the requisite expertise to intervene in these areas that judicial intervention could undermine national security one of the things think that's so interesting about those arguments that it is is that it's often courts themselves that are making those arguments about their own limitations in this field so think that's good note to end on that's basically just quick summary of how look at the field and how teach it matt thanks for that before go into mind if could actually pause wanted to ask you couple of questions because really like the way that you organize the field ironically because it's it's different from how do it as we're going to see i'm just more sort of doctrinal in how approach it so this is really helpful for me to see that more of thematic framing and as thought about that it somehow got me thinking about this and was wondering if you could answer both what do you find is most challenging or difficult given how you frame it like what are the what are the pieces that the hardest to get across in the classroom and what is it that makes that hard but then conversely what do you actually get the most joy from what's the most fun to teach yeah those are great questions i'd say in terms of difficulty by far the hardest aspect and one of the most important aspects to teach is about the role of the legislative branch and think there's general problem with teaching about congress and law schools which is that there tends to be this very very heavy focus on statutes on the positive enactments of congress that the thing that congress does is it passes the statute operative techniques think in general but especially in national security law if you're only focused on the statutes that congress passes you're missing 90 percent of what congress does in general but especially in national security law congress's role includes oversight investigations hearings wielding power over appropriations or leverage for things like senate confirmation in order to try to guide or constrain national security decision making sometimes it's committees that have lot of power sometimes it's even individual members especially those who are very good at perhaps working the media or figuring out how they can use their leverage in order to try to influence national security policy foreign policy defense policy so think if you're focused only on the statutory aspect of congress's powers you're missing lot of the action this is hard to teach because there aren't think good ready materials for teaching how congress acts in this area in ways other than sort of statutory enactment so that that for me is the is the hardest part is how do you teach the legislative branch my favorite thing to teach my favorite case every year teach this is teaching the pentagon papers case this is 1971 case about the power of the government or lack of power of the government in this case to prevent the publication of by the the new york times and the washington post their publication of secret history of the vietnam war and the nixon administration was claiming executive power to to bar publication and the nixon administration loses that case like it for few reasons it's enjoy teaching it for few reasons first of all it's great case for tying together all three of the dilemmas that talked about it's case about structural dilemma it's case about liberty dilemma and it's case about the secrecy dilemma they're all present there the materials are great including oral arguments and and some of the the briefing it's it's anomalous in the sense that you know just concluded my talk by saying courts tend to be pretty passive in this field this is an example where courts are much more active they're not the supreme court is not giving much deference to the executive branch in that case and and there's an interesting story think about why at that particular period in in the early 1970s why courts were not as inclined to be as as deferential so it's an interesting story to teach in that way it also by the way leads to another one of my very favorite cases which is called the united states versus the the progressive the progressive magazine won't spoil the ending but that's case about publication of an article essentially about how to build thermonuclear bomb and and the government is trying to enjoy in publication and like that because it's sort of it sounds like one of these crazy hypotheticals that you might need to that you might make up as law professor we all know the law professor's favorite game of making up and challenging students with really extreme hypotheticals the thing about national security law is you don't have to make them up emergencies extreme cases are often not marginal to law they're very very important and maybe even central to it you don't have to make up hypotheticals like you know what should ports do if if the government rounded up hundred thousand people based purely on ethnicity because military experts claimed it was necessary to do so to prevent to defend to defend the nation we have those cases and don't mean to suggest that national security law is all about only about these big extremes it's not in fact many students think are somewhat disappointed to learn that lot of national security law is pretty mundane but think emergencies and these extreme circumstances play more central role in shaping law in this area than than in other areas of public law yeah that's that bobby i'm interested to hear how you teach it okay well let me share my screen give me thumbs up if you can see that did it come across great got it all right so let me jump right in want to flag something that usually do right at the the first class and that's to confront head-on that the predicate question of what even counts as national security if we're going to talk about the field of national security law what is national security that's famously difficult thing to answer and there is obviously no correct answer that draws clear boundary around the field there are some things that are sort of at the center you know combat operations espionage everyone think agrees that that's in scope for the field but as you move away from the center and you get out towards the edges you can get into wide array of topics that may have some fair claim especially if you're if you're focusing on the indirect or downstream effects of things and eventually you can get to things like just how's the economy doing what about climate change what about the state of public education in our country all these things that some remove do concern national security you have to draw lines somewhere and so rather than trying to say here's the one right way to conceptualize the field just want students to be sensitive to how reasonable people can disagree bit about what's quite in scope and what's what's not in scope and then emphasize that you know we're constrained by time in course anyways we can only cover so many things and here's what we're going to cover now to talk about the definitional difficulties to raise separate predicate question which is why it matters how you define the field beyond the obvious it obviously matters in terms of how you decide what you spend your class time on but is there larger deeper significance and think there is think matt your description moment ago about how courts engage with national security litigation underscores exactly why it matters for better or worse the courts tend to treat cases that they in some sense conceptualize as national security cases differently for many courts historically that's been more deferential as you described and then there is this countervailing view that there's need from you don't see it effectuated very often but there is this countervailing view that you should be more aggressive with judicial review because the potential encroachments on rights and liberties can be so much greater here so the stakes are pretty high now said that tend to be less thematic and more doctrinally focused in how actually break the course's potential scope into bite-sized bits that can be framework for learning it might be better almost to say it's it's more of functional approach that is single out some broad categories of things that the government does roughly more or less in the name of national security and then under each of those headings are series of more specific areas that the law in particular way regulates so there are lot of different ways one could slice this up i'm not claiming this is the only way or even the best way it just happens to be my way so here's what do one functional zone is slew of activities under the heading of intelligence and more about that in moment second functional zone or silo if can borrow from the slide is war fighting and things associated with warfighting third an especially capacious and broad area is what i'm calling statecraft this isn't necessarily use of the word statecraft that is that is commonly used in the national security law field but think it's handy one and hope that as unpack this silo in minute it'll become clear why i'm using that that label the short version is i'm trying to gesture towards the array of things the broad array of things that the government does in its relationships with other governments or foreign actors that are not in the category of actual armed conflict or war and at least to some extent are different from things would have covered anyways under the intelligence heading and then turning more of an inward focus towards the homeland this silo could be called homeland security could be called homeland defense domestic security just happens to be the label i'm using here this is bit of catch-all for an array of things that sometimes are left out of national security law course but certainly have their national security elements and some of these have really been in the news of late so i'm going to talk about that little bit as well so let me go back and unpack what have under the hood for each of these silos actually wait i've reminded myself also have some cross-cutting horizontals these are things that matter across all the different national security functions they might engage in preserving secrecy is something that government entities that are engaging in intelligence activities warfighting statecraft domestic security activities preservation of secrecy is is widely perceived for better or worse as central feature enabling those activities to be successful and and as you pointed out earlier matt it's typically viewed as in tension with the types of things we associate with democratic accountability in free society which i'm distilling here down into the even shorter phrase trust or word trust think that the right way to think about this is that they are intentions secrecy the more you maximize that the more difficulties you have with building trust and vice versa but also think that it's proper to view both of these as obligations of the government things that are enablers of these functions that is it's not just that intelligence activities and warfighting are going to be more effective if secrecy is preserved to substantial degree but if you can somehow at the same time build and establish public trust those functions are going to work better and be more effective as well so so they both have that same cross-cutting quality even though they are in tension with each other so now let me unpack my silence starting with intelligence there are lot of different things under the hood here do think it's important in especially in the law school class setting to begin with an orientation as to who the key institutional players are so who's who in the zoo when it comes to the american intelligence community then think for the way like to approach it that it helps to begin with some paradigm scenarios making clear how legal protections for privacy and certain other legal protections come into play in some relatively clear-cut and say relatively very advisedly but some clear-cut scenarios for example the set of rules that come into play when the intelligence activity involves collection of intelligence outside the united states against wholly foreign targets there are complications yes but as comparative matter that's relatively straightforward by the same token domestic investigative activity within the united states conducted by law enforcement agencies for law enforcement purposes incredibly rich and complex area but comparatively speaking the rules are relatively straightforward there as well and so begin by touching on those two paradigms as paradigms and using them to get on the surface lot of bread and butter things about the fourth amendment about title three wiretaps grand juries executive order twelve triple three and that framework for foreign intelligence collection and then against that backdrop then you start building in the complexities and the main complications focus on like you have to do with electronic surveillance talked about how there had there was time when electronic surveillance was an intelligence collection topic domestically separate and apart from foreign intelligence gathering and separate and apart from law enforcement investigation talked about what that was the legal issues it raised and the demise of that category and that leads to some really great policy conversation as well and then it also sets up the emergence in the mid-1970s or should say 1978 to be particular the foreign intelligence surveillance acts we spend ton of time unpacking how the bread and butter part of fisa electronic surveillance how that works and then eventually we complicate it with with other more exotic aspects of fisa such as what's called section 702 talk lot at this point about executive branch self-regulation there's lot of executive order 12 triple three here and it's lot of fun the same way you were saying it's really fun to bring out the pentagon papers case as case study that highlights lot of themes think that the rise and fall at least for now of bulk metadata collection and contact chaining that that set of issues is really remarkable story that has similar quality of having interesting elements of secrecy versus accountability and trust the role of the judiciary versus other institutions it really hits on all your themes as well so that one is is very similar think and then move away from that collection focused aspect of intelligence knowing that we're knowingly leaving behind some of the other things intelligence agencies do because i'm going to come back to that under the heading the statecraft and in the meantime pivot over to the defense department in warfighting in in relatively conventional sense so under this heading there are so many classic issues of national security law again there's some amount of work to be done introducing the institutions and then break it up in way that tracks some of the lectures matt that you've given for this national security law lecture series on the constitution and war powers first questions about the initiation of force the decision to threaten or use force there's obviously rich domestic law here there's the constitution there's powers act there's authorizations for use of military force and then there's the international law layer with the un charter and the you said bellum separate from that then you get into questions of legal regulation of the actual conduct of hostilities there is some u.s domestic law here and some of it in certain settings is really interesting and you can use the interrogation controversies and the torture controversies of the post-9 11 period as great wedge into that gets you focused on the war crimes act gets you focused on the torture act you can bring other things to bear as well you can get the ucmj or the uniform code of military justice into the picture but of course lot of that also requires engagement with the underlying international law framework the law of armed conflict also known as international humanitarian law of course is course unto itself but it's important to bring in the cardinal principles and some of the key applications and then there's got to be some engagement with international human rights law as well in no small part because you've got to talk about the peculiar way the almost unique way in which the united states government approaches that particular body of international law and relates it to our war fighting activities and you have to contrast that with how it is from the perspective of the allies with whom most of our warfighting takes place in coalition and so the coalition complications have lot to do with international human rights law now all of that of course leads if time permits if the interest of the instructor and the students call for it to engage with things such as the international criminal court international criminal law and institutions and and you can have you can really go down the rabbit hole here beginning to spend time with u.s military commissions and contrasting them with international bodies but also want to make sure that we mentioned that there is piece that you cover in one of your lectures for this series but that's often neglected in classes and that is the control of the process of ending war when does war end which institutions have primary responsibility here can the courts second guess the executive branch on that point huge issues turning to statecraft said this required bit of unpacking so here it is with statecraft i'm using this as shorthand for variety of tools that are in the u.s government's toolkit and by extension and any other government's toolkits though the efficacy of these tools varies from state to state what are some of them this isn't complete list but these are some of the ones like to focus on divide it first into those that are used in an overt way where the responsibility of the us government is is not hidden so separate from covert action we'll get to that in moment obviously diplomacy is big part of this there are interesting legal questions here to explore regarding the president's role as as curtis wright the curtis right decision put it the sole organ of the united states in foreign relations there are in fact interesting foreign relations law and separation of powers questions that arise here economic instruments why if you've been following you know at the time we're recording this mat tiktok and wechat are in the news because the president has used the international emergency economic powers act aiba to impose sanctions on these chinese companies it's great illustration of the fascinating and complex legal issues surrounding the various economic tools that congress owns as constitutional matter but in practice has delegated by statute in extremely generous and broad ways to the executive branch so think these days an aipa segment of the course is is really valuable thing to have arms control endlessly interesting and complex though often hard to come to grips with in single national security law class the use of civilian criminal prosecution as an instrument of statecraft we see this lot of late with prosecution of persons said to be agents of say the ministry of state security in china for hacking activities commercial espionage activities these are important instruments of statecraft they link up with the idea that one thing countries can do against one another is naming and shaming them publicly and then we need to note there are uses of the military or perhaps the assets of other agencies using platforms that seem military in nature because of their kinetic effects or potential kinetic effects in circumstances that do not appear to be armed conflict now that might be something that's an actual it's an airstrike lethal use of force but in context where there's at least some debate about whether the context is armed conflict or it might be something more in the nature of how u.s military assets like u.s naval vessels can be used in circumstances such as again at the time of this recording we just had big seizure of oil being shipped from iran to venezuela in violation of sanctions situations like that where the navy might get involved counter piracy there are lot of circumstances like that that are part of statecraft as well next we have the covert statecraft tools traditional covert action is an incredibly rich topic as you described earlier matt and then there are things that are done that may or may not count as covert action from u.s statutory perspective but they're done in the cyber domain and have lot of significance in salience and current policy debates and that actually also at least partially encompasses what i'm separately naming here as information operations this question of how we as united states government respond to what other governments like the russian government caused to happen in the information domain and questions about what if anything the united states government can or should do of like kind you could classify that under the covert heading or under responses to covert activity from abroad but it's it's also kind of useful to break it out as its own sort of complex advanced case study at the cutting edge now what else have we got said there were slew of activities under the heading of domestic security what are some of those well lot of the stuff's of course been in the headlines since at the time we're recording this we are still in the throes of the covid 19 pandemic but some natural disasters are more episodic and there are interesting elements of homeland security that one can cover talking about responses to one-off activities or time demarcated activities like massive hurricane like hurricane katrina hurricane sandy and then of course when you're recording in 2020 you you can't help but notice that there's lot of legal issues under the heading of how we respond to sustained natural disasters such as pandemics and by the same token issues ripped from the headlines today remind us that domestic unrest whatever the underlying cause for it may be when it begins to spill over into potentially violent or actually violent confrontation again between government authorities and protesters there are an array of issues that might not be covered in another course and therefore might be fit topic for national security law course and if you're going to do that you'd want to get into the rights of protesters and others expressing themselves the relevant criminal law that is perhaps set in tension with those expressive and assembly rights and then as we've seen in 2020 there are really difficult and important legal issues statutory interpretation issues maybe constitutional issues about who exactly controls law enforcement authorities both as matter of federalism and especially as matter of departmental control and that of course naturally leads to discussion of control over the military and here when we begin to think about how important the insurrection act is policy comitatus act issues those sorts of things are among the the deepest bedrock elements of of national security institutions and the legal regulation of them and they fall under this heading mass casualty disasters set in motion lot of interesting and often unstudied issues about who which authorities go with which institutions i've included immigration here for particular reason not because immigration writ large is necessarily or should it all be thought of as national security threat that's not remotely what i'm suggesting if you know about how immigration law works and you're steeped in the details you know that there are certain authorities that are national security scenario authorities within the institutions and authorities and regulations of immigration processes so special authorities for removals special authorities for continued detention even when removal seems not currently possible that have to do with claims of national security threat lot of that connects with counterterrorism so so this is place where that could be mentioned and then of course you have to unpack what's under the hood legally speaking or doctrinally speaking when we talk about secrecy and trust and the tension there it is really great here to do matt what you said you definitely do which is to bring out that tension and have that really be elevated and lifted up in the conversation so no one can look past it and then against that backdrop look at different scenarios think it's helpful to start with the fact that there is in fact hostile or adversarial espionage directed against things that are in fact properly considered secret and to look at how certain institutions have certain authorities to try to guard against the efforts of whether it's the russians the chinese or any other entity that's trying to steal the nation's legitimate secrets how does law speak to that and then begin to contrast it with other scenarios and before one gets into leakers and whistleblowers of the kind that the government itself may not be so excited about let's focus first on the scenarios where those leading government officials are the ones doing the leaking the common washington practice of the authorized leak or the quasi-authorized leak and then start talking about snowden type scenarios unauthorized leaks how does the law intersect with those scenarios and how if it all is that different from whistleblowing i've had examples in recent years that remind us of just how precise in particular the statutory frameworks of protections for whistleblowers can be and how it can really matter just how congress has defined that authority separately the tension between secrecy and accountability comes up in the litigation context when you have people who claim constitutional statutory or other injuries and they want to go to court but the the nature of the claim is one that puts into issue the nation's secrets or claims that it does that leads to the state secrets privilege and other things like the classified information procedures act and similarly statutory requests to the executive branch for production of information under the foia statute freedom of information act litigation that often can be met with secrecy claim very similar types of issues arise there last again illustrated repeatedly in recent years the tensions that arise when the executive branch claims various forms of privilege or sometimes even immunity from congressional process and this goes to your point matt about how so much of what congress does that matters in the national security space it's not just this or even mostly the statutes congress enacts it's the oversight activity both formal and informal the hearings etc and this often is met with resistance from the executive branch more in recent times than we've seen for long time and this generates whole host of complex issues and think can stop there that's how break it up matt again it's functional model that tries to walk students through set of institutions and actions they engage in and then the various slices of law that both enable and constrain those activities and do try to to bring out the themes as we go but listening to how you describe how you do it it does make me think that should probably open maybe by making them watch this video and if you're watching this because i'm making you watch it well this is where the idea came from making us all pay more attention to the thematic elements before we get too far into it and so i'll stop there great bobby thanks for that really like your point about emphasizing the need to maintain public trust in national security powers national security agencies big question about whether the political system is willing to tolerate certain vast national security powers and and that helps think really hit home point running through through courses in this area which is that legal constraints limit national security activities but they also enable them in the in the first place so have two questions for you one you've been teaching national security law for almost two decades now am curious to hear how you've seen the field change during that time and especially the emphasis of your own emphases in in what you teach how is national security law class in 2020 different from one in 2010 versus one in let's say september 1 and second what's driving those changes what are the what are the big factors that on year-to-year basis or overtime have really pushed an evolution in what you choose to emphasize so love that prompt because in my scholarly work in my identity as as an author who writes about these things i've covered lot of different topics but at least in my own mind probably only in my own mind there's common theme in which what i'm trying to unearth is how certain factors certain variables are changing over time in an in dynamic relationship with the legal system both causing the legal system to shift over time but also the legal system is having its effect on those factors and so usually frame it to simplify it little bit think of three variables or vectors one is strategic change one is technological change and one is political change and again think those three factors are in dynamic you know both directions relationship with with all the different types of law constitutional statutory international etc and and think it's possible to best understand how national security law as field evolves over time and and how we explain why the coverage of the courses tends to shift over time by accounting for those actual factors so for example strategic change 911 is great example of this as crystallizing moment or an inflection moment where it's not that the change had happened overnight but long-running change involving the relative capability of non-state actors to do adversarial things that would rise to the first tier of of the federal government's concerns in terms of what it treats as strategic problem that has to be not not just sort of managed at lower level but treated as first on the agenda action item that had been change underway for quite while it doesn't all change at one moment but the 911 attacks crystallized things and upset the chessboard in way that brought that to to the fore and set in motion whole set of activities and events that then became the focal point for national security law mean everything shifted to being all about counterterrorism and the different things governments do under that heading for very long time it's really only in recent years that other both more traditional topics about great power competition and novel topics like cyber security began to reclaim some of the the terrain and the mental space and the time and the headlines so so strategic change absolutely does that and and speaking of cyber security as as great powers and near-peer competitors or regional rivals whatever we want to call them all begin to flex their muscles in the cyber domain we're seeing an example of how that shifting strategic landscape has begun to draw the legal system both in response to that and studying it into the picture as well now that is also big story about technological change technology change can really goose what it means for the law to be certain way at one point in time then the technology changes and the way the law was set up to be suddenly feels different so third party doctrine in the fourth amendment is classic example of this where the supreme court in the 1970s develops the idea that you just don't have reasonable expectation of privacy in information that's in the hands of third party like your bank or the phone company there could be statutory protections but the fourth amendment in the first instance is not going to protect that the way it would if that information was was in your head or in your house et cetera or in other private domain and that was criticized from the from the beginning when those cases first dropped but the the meaning the practical consequences of the doctrine in terms of what it made possible for the government to get without having to go get warrant by by reaching out to third parties to produce documents or other information once you move into the digital realm and and we begin to live more and more of our lives digitally and online and in the information space as as we've learned in more recent supreme court cases this is gonna unsettle it's it's changed the meaning of all that and so the technological change shifts what the law perhaps needs to be the law starts to move to catch up we've seen ton of this in the context of fisa and intelligence collection and surveillance the whole the whole idea of category of national security law concerning cyber domain activities is all about that and would say the same is true about the ability of remotely piloted vehicles to bear arms and fire from distance where predator drones can carry out lethal strikes in circumstances that as practical matter because of the gap between when you might have actionable intelligence and when you can pull the trigger you just couldn't use lethal force in the same way before that also was big part of the post-911 national security law development for drone strikes and then thirdly politics political change for national security law doesn't happen often but when it does it turns out it's really disruptive and over the past four years now we've been living through this this punctuated moment of change punctuated by the president in his manifestation of distrust for what he derives as the deep state and so the politics that one would have associated with national security institutions and issues 20 years ago or let's say like 2003 what do you think the republican party's center of gravity is on nsa and surveillance and you know trying to monitor calls under the under the name of trying to catch al-qaeda communications versus what do you think about certain surveillance activities today if you ask about the same the same institutional actors in politics it's obviously much more muddled landscape and there are reasons for this but the point i'm trying to make is not political one it's just descriptive observation that when the politics become different and when partisan identification about where if you're this party maybe you ought to be on given national security issues when that begins to change that really changes the possibilities for what statutes that sunset could realistically be renewed and and we've seen the demise of several surveillance authorities some of which were not at all really controversial one of which was that died this past year and think that's entirely attributable to the political shift and it changes it changes the art of the possible as to what will stay the law what might become the law and so all of that's part of why this is such great field just to sum up there are fields where the law is very static and it provides great predictability and if you're operating under that law this is very convenient and nice unless of course you feel that it needs reform and the static nature of it makes it problematic this is not such field this is field where nothing seems to stay for long there's always the possibility of strategic technological or even political change of setting the apple card and so it stays constantly fresh and exciting and certainly feels constantly ripped from the headlines think that's great note to end on bobby so let me thank you for teaming up with me on this lecture series and thanks to those of you who are tuning in for watching thank you