Regulating Disruption: Responding To Emerging Technologies

2017 Stanford Technology Law Review Symposium On Drones, Autonomous Vehicles, VR and 3D Printing

On March 3, 2017 I will be a panelist at the 2017 Stanford Technology Law Review symposium.  The agenda appears below:

Regulating Disruption: Responding to Emerging Technologies
All events will be held at Stanford Law School
Friday, March 3, 2017

8:30-9:00 AM – Registration & Breakfast

9:05-9:50 AM – Opening Keynote—Virtual Reality (more…)

Kill-lists and Accountability Lecture at Penn State Law

KNewImageill-Lists and Accountability, a public lecture at Penn State’s Dickinson School of Law.  November 12, 2012 7 p.m.   

In targeted killings, who creates the “kill list?”  Who approves the names on the list? How is the targeted killing executed? Who is responsible for ensuring that the strike complies with international humanitarian law obligations? When killings are conducted in secret, how can we hold government accountable? National security scholar Gregory McNeal will present “Kill-lists and Accountability” at Penn State Law and the School of International Affairs.

The public is welcome to this event, which will begin at 7 p.m. in Lewis Katz Hall in Carlisle, PA. Registration is requested.

“As the shift from conventional combat to cyber attacks and targeted killings (often through unmanned drone strikes) accelerates, questions arise as to the applicability of the legal standards governing armed conflict developed in earlier times,” said Professor Amy Gaudion, who is organizing the event. “Professor McNeal’s work attempts to answer these questions, and offers recommendations for how the laws of war should apply when the tools in the combat arsenal change.” Professor McNeal’s presentation is based in part on recent field research he conducted into the U.S. practice of targeted killings, and specifically the creation and execution of “kill-lists”. His research concludes that less than 1% of preplanned operations conducted by the military result in collateral damage, but this only tells part of the story as reports indicate the CIA is also involved in the controversial practice.    

This program is co-sponsored by the American Constitution Society, Federalist Society, International Law Society, Military Law Caucus and Penn State Journal of Law & International Affairs, an interdisciplinary journal jointly published by Penn State Law and the Penn State School of International Affairs.
This event will be held in the Apfelbaum Family Courtroom and Auditorium in Lewis Katz Hall in Carlisle, PA, and simulcast to the Apfelbaum Courtroom, Lewis Katz Building, University Park, PA, and webcast live.  For more on this issue, see my article Kill-Lists and Accountability.

The Law of Cyber Warfare: Can The Current Legal Regime Hack It?

WCL logo


Presented by the American University International Law Review and National Security Law Brief

November 8, 2012 10:30 am – 2:30 pm American University Washington College of Law

Although cross-border attacks on computers and information systems do not involve a physical invasion of sovereign space, incursions such as the Stuxnet virus increasingly seem to serve a similar purpose. The symposium will examine whether cross-border cyberattacks qualify as acts of war under international law, whether the difficulties of distinguishing civilian and military targets require a special legal regime to govern cyber warfare, and how legislation that has been passed or is currently being considered by the U.S. Congress will affect the international context of such attacks. Are the current legal conventions sufficient to regulate this new kind of warfare? If not, then how should international law account for changing technological capacities? How effective are domestic legislative efforts in addressing the burgeoning foreign threats critical infrastructure institutions in the United States face?

10:00 am  Registration

10:30 am  When is a Virus a War Crime? Targetability and Collateral Damage Under the Law of Armed Conflict:

As cyber attacks have become an increasingly integral tactic for military strategists, they have raised questions for the international legal regime on the conduct of war. Cyber warfare is particularly challenging because cyber attacks designed to disrupt, deny, or degrade enemy military capabilities may simultaneously damage civilian computer systems. Does the law of armed conflict provide sufficient guidance for establishing targetability? Can the destruction of power grids and other critical infrastructure be counted as collateral damage or could they be considered war crimes? Is international humanitarian law capable of governing rapidly developing technology? If not, can it be amended, or is a new legal regime needed?


Paul Rosenzweig, Professorial Lecturer in Law, George Washington University

Charles L. Barry, Senior Research Fellow, Center for Technology and National Security Policy, National Defense University

John C. Dehn, Senior Fellow, Rule of Law Center, West Point

Gregory S. McNeal, Associate Professor of Law, Pepperdine University

Moderator: Professor Daniel Schneider, American University School of International Service; Director, Center on Non-traditional Threats and Corruption (CONTAC)

1:15 pm Is Domestic Legislation Sufficient Tool to Battle Foreign Attacks? An Analysis of the Efficacy of Domestic Cyber Security Legislation

In an increasingly interconnected world, critical infrastructure in the United States faces foreign cyber threats at an increasing rate, emphasizing possible vulnerabilities in current security systems. Foreign attacks are particularly concerning because accessibility to critical infrastructure systems puts both the United States government and the civilian population at great risk. Is legislation like the Cyber Intelligence Sharing Protection Act or the cyber security bills being considered by the U.S. Congress effective in targeting the risk of foreign attack on critical infrastructure institutions, such as power grids, gas pipelines, and the banking sector, which are prime targets for cyber attacks? If not, should more regulatory efforts be considered or are companies in the business of managing critical infrastructure capable of maintaining their own standards that are effective in combating foreign attacks?


Michelle Richardson, Legislative Counsel, American Civil Liberties Union, Washington Legislative Office

Jamil Jaffer, Senior Counsel, House Permanent Select Committee on Intelligence

Catherine Lotrionte, Director, Institute for International Law, Science and Global Security

Moderator: Professor Melanie Teplinsky, American University Washington College of Law

NDAA May Put Defense Contractors In Prison For Counterfeit Parts


Over at Forbes, where I write a column on Law, Policy and National Security, I’ve posted a piece entitled NDAA May Put Defense Contractors In Prison For Counterfeit Parts.  Here is an excerpt:

The NDAA, which was passed earlier this year, shifts the burden to contractors to screen their equipment for counterfeit parts.  This regulatory approach is similar to the burden shifting approach being debated for cyber security legislation.  However, unlike the proposed cyber security legislation, the provisions of the NDAA include civil and criminal penalties with the possibility of life in prison for those whose recklessness with regard to counterfeit parts results in death.

The NDAA addresses counterfeit parts in Section 818, specifically requiring DoD “conduct an assessment of Department of Defense acquisition policies and systems for the detection and avoidance of counterfeit electronic parts.”  Following that assessment, DoD must:

  • establish Department wide definitions for the terms “counterfeit electronic part” and “suspect counterfeit electronic part”
  • implement a risk-based approach to minimize the impact of counterfeit electronic parts
  • establish a process for analyzing, assessing, and acting on reports of counterfeit electronic parts and suspect counterfeit electronic parts

The legislation’s provisions require DoD to promulgate regulations that:

  • make contractors “responsible for detecting and avoiding the use or inclusion of counterfeit electronic parts or suspect counterfeit electronic parts in such products and for any rework or corrective action that may be required to remedy the use or inclusion of such parts”
  • prohibit contractors from passing those costs off to DoD as allowable costs under their contracts
  • creates a safe harbor provision for contractors to avoid civil liability if they take reasonable efforts to avoid counterfeit parts or if they become aware of counterfeit parts report such parts to DoD within 60 days of detection

Technology & Learning Faculty Conference: Increasing Student Engagement and Measuring Learning with Clickers


On September 14, 2011 Pepperdine University will be hosting its Inaugural Technology & Learning Faculty Conference.  I will be presenting on Increasing Student Engagement and Measuring Learning with Clickers.

Here is an excerpt from the program:

Professor of Law Gregory McNeal is no novice to teaching with technology. Professor McNeal, who teaches in a traditional lecture style, talks about using clickers to gain feedback from students and engage with them in the classroom. In this session you will experience what his students experience as he takes you through a lesson focused on the-beyond-a-reasonable-doubt standard in a homicide case. This interactive presentation will demonstrate how clicker technology facilitates learning and critical thinking, and allows for immediate assessment. If you are interested in using clickers in your classroom, you should consider attending this session.


My presentation will demonstrate the use of Turning Technologies clickers (pictured at right).

The full agenda appears below:





Targeted Killing of U.S. Citizens and the Federal Protective Power

Al Awlaki targeted killing gsmcneal comMy essay The Federal Protective Power and Targeted Killing of U.S. Citizens is now available at The essay is a response to Ryan Alford’s interesting historical piece entitled Sentence First, Verdict Afterwards a shorter version of his lengthier law review article The Rule of Law at the Crossroads: Consequences of Targeted Killing of Citizens. His claim, roughly summarized, is that the history of the founding and the Constitution’s “forgotten clauses” amount to a due process guarantee which prohibits the president from targeting U.S. citizens who take up arms against the United States. In Alford’s view, any citizen who joins the fight with the nation’s enemies cannot be killed; rather he must be convicted by an Article III court on the testimony of two witnesses to his overt act of treason. In my response I argue that Alford’s arguments against targeted killing are thorough, yet unconvincing.

Here are some excerpts:

Under [Alford’s] view of the Constitution, al-Awlaki could be standing on the White House steps with an RPG, and under Alford’s reasoning his killing would be prohibited (absent the due process protections Alford believes are compelled by the Attainder and Treason Clauses). Surely the Constitution does not require this level of deference to citizenship and such stringent limitations on federal action. Either there are some circumstances under which the President may order a U.S. citizen killed—in which case much of Alford’s historical argument is incorrect—or al-Awlaki with an RPG cannot be killed, and U.S. presidents have been behaving unconstitutionally for centuries. My reading of the Constitution leads me to believe that there are circumstances when the president may order U.S. citizens to be killed. It may be akin to the facts in al-Awlaki, where one is actively making war against the United States, or it may be in lesser circumstances that threaten the instruments of federal power. * * * * Alford cites many historical sources for the idea that the Founders believed citizens should not be arbitrarily deprived of their lives without due process. That notion though, must also recognize that the Founders felt that a key role of government was to ensure that citizens were equally protected from external harms. Security of one’s person and property was a principle emanating from the doctrines of Hobbes and Locke, both of whom influenced the judgment of the Founders. Furthermore, as the Court noted in Neagle, the protective power is an “obligation, inferable from the Constitution, of the government to protect the rights of an American citizen against foreign aggression.” As we know from the al-Awlaki case, that foreign aggression may come in the form of an American citizen directing attacks against the entirety of the United States. When such attacks occur, it falls on the president to embody the “great object and duty of Government [which] is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any Government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving.” Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186)(C.C.S.D.N.Y. 1860).

My response essay was preceded by a response essay written by John Dehn and will be followed by a response essay written by Carlton Larson. The full colloquy can be found here.

Targeted Killing and the Rule of Law

CATO Unbound

CATO’s June 2011 issue of Unbound is entitled “Targeted Killing and the Rule of Law” An excerpt:

When can the executive lawfully kill?

The rule of law itself depends on getting the answer right. Clearly that answer can’t be “never,” because then even defensive wars would be impossible. And it can’t be “whenever,” because that would be the very antithesis of lawful government. As F. A. Hayek wrote, “if a law gave the government unlimited power to act as it pleased, all its actions would be legal, but it would certainly not be under the rule of law.”[1]

The answer must be “sometimes” — but which times are those? In wartime? In peacetime? Against aliens? What about citizens? What role do the courts play? And what about the legislature?

In answer to these questions, lead essayist Ryan Alford draws on the Anglo-American constitutional tradition, arguing that the killing of a citizen or subject without judicial authorization was so far opposed to our traditional legal safeguards that the American Founders didn’t even bother to prohibit it in the Constitution. And yet, he argues, the case of Anwar al-Awlaqi shows that our government now claims this power anyway.

To discuss with him this month, we’ve lined up a panel of legal and historical experts: John C. Dehn of the U.S. Military Academy at West Point, Gregory McNeal of Pepperdine University, and Carlton Larson of the University of California at Davis. Each will offer a commentary on Alford’s essay, followed by a discussion among the four on this timely and important subject.

Here is the sequence of events:

Lead Essay

Sentence First, Verdict Afterwards by Ryan Alford.

In one sense, “targeted killing” is what war is all about. But can the executive branch rightfully declare a U.S. citizen the target of an assassination order? Lead essayist Ryan Alford argues that the “presidential death warrant” is repugnant to the rule of law—so much so that the Founders didn’t even think it necessary to make an explicit statement about the practice. At the time of the Revolution, English kings hadn’t enjoyed such a power for centuries, and it was thought to be the very antithesis of the rule of law. A power of this magnitude cannot be simply inferred from the Constitution’s silence, particularly when legal practice in the Anglo-American world tells so strongly against it.

Response Essays

The Conversation

  • Conversation to follow June 13.

Related at CATO

The U.S. Practice of Collateral Damage Estimation and Mitigation

I’ve posted to SSRN ( the abstract for my piece entitled The U.S. Practice of Collateral Damage Estimation and Mitigation.  Here are the details:

This paper explains how the U.S. military estimates and mitigates the impact of conventional weapons on collateral persons and objects in most military operations involving air-to-surface weapons and artillery. It is the descriptive part of a larger work discussing the normative implications of U.S. targeting practices.

In recent years, an entire body of academic literature and policy commentary has been based on an incomplete understanding of how the U.S. conducts military operations. The literature is incomplete because U.S. practices are shrouded in secrecy and largely inaccessible. As a result commentators have lacked a descriptive foundation to analyze and critique U.S. operations. Their writings have focused on easily describable issues such as whether a target was a lawful military objective, and then typically shift attention to the question of proportionality balancing and collateral damage.

These commentators skip an important aspect of actual practice – the scientifically grounded mitigation steps followed by U.S. armed forces. Those mitigation steps are designed to ensure a less than 10% probability of collateral damage resulting from any pre-planned operation. This paper’s description differs from the general and incomplete approach currently found in scholarship and more accurately describes the reality of modern operations. In those operations U.S. armed forces follow rigorous steps prior to engaging in any proportionality balancing.

This paper is intentionally descriptive and explanatory; it makes a contribution to theory by providing a qualitative empirical account (based on public documents and field interviews) that explains for the first time in scholarly literature the process of collateral damage estimation and mitigation as practiced by the U.S. military. While this paper will be especially useful for those seeking to understand how collateral damage is estimated in targeted killing operations, the paper’s relevance is not limited to the context of targeted killings.

Key Findings:




The Washington Post’s Jihadist Op-Ed Contributor

The great Tom Joscelyn, writing at The Weekly Standard has posted The Washington Post’s Jihadist Op-Ed Contributor.

He provides 5 reasons why the Post should have thought twice before giving Moazzam Begg space to comment.  With all deference to Tom, I’m thinking they thought twice but just didn’t care, mostly because what he has to say fits with their narrative.  Check out Tom’s full post, below are his five reasons (I cribbed out Tom’s full explanations and evidence so that you check out his full story at TWS):

Reason #1: Moazzam Begg and his organization, Cageprisoners, have proselytized on behalf of al Qaeda cleric Anwar al Awlaki and spread jihadist propaganda.

Reason #2: Moazzam Begg’s own book confirms he is a jihadist.

Reason #3: The Department of Justice’s investigation failed to substantiate Begg’s claims of torture, and found that his damning confession at Gitmo was voluntarily given.

Reason #4: A recently leaked assessment of Begg prepared at Gitmo shows that military authorities recommended he remain in American custody.

Reason #5: Amnesty International, which has partnered with Begg to demonize Guantanamo, endured a crisis when one of its top officials objected to the relationship.

The full post is here: Weekly Standard Blog.