U.S.

A Rule-of-Law Model for Governing AI Risks: The Global Significance of Canada’s New AI Strategy

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Mike Kelly and I continued our work on AI risks and governance issues with an essay in Just Security examining the significance of Canada’s new AI strategy. Here is a short abstract of the essay:

Democratic AI governance is conventionally mapped along a single axis of regulatory intensity, with the European Union’s rights-based AI Act at one pole, the United States’ innovation-first approach at the other, and Canada and Japan occupying a middle position. This essay argues that the axis measures the wrong variable. What matters is not how much a state regulates AI but how it exercises power over AI — whether that power is rule-bound, transparent, and reviewable, or discretionary and exercised at executive speed. Remapped on that basis, the United States, which governs through procurement leverage, export controls, and executive directives rather than statute, sits at the troubling end, while Canada keeps company with the rule-bound regimes.

The significance of Canada’s “AI for All” strategy (June 2026) lies not in splitting the difference between regulation and innovation but in grounding governance in rule-of-law principles — published criteria, mandatory notice, reasons, and recourse — though its reliance on voluntary private-sector compliance remains a serious weakness. The essay further contends that all four models neglect the risk posed by artificial general intelligence, and that only credible ex ante binding commitments can constrain actors against their own competitive interests. Middle powers should emulate the Canadian model pending an eventual treaty framework.

Nuclear-Powered AI: The Risks of De-Regulation

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Mike Kelly and I continued our collaboration on AI issues, with an essay in Just Security entitled “Nuclear-Powered AI: The Risks of De-Regulation,” in which we analyze the risks associated with the Trump administration’s coordinated loosening of regulation in AI development, nuclear energy deployment, and environmental review. The government is relaxing regulation in all three areas in order to facilitate the development of nuclear energy — particularly small modular reactors — for purposes of providing power to the ever spreading and expanding AI data centers. While the use of nuclear energy has some appeal from a climate change perspective, the coordinated relaxation of regulations in all three areas raises significant risks, which we explore and explain.

What was the International Legal Basis for the Strike on al-Zawahiri?

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(Published in Just Security, Aug. 9, 2022)

The killing of al-Qaeda leader Ayman al-Zawahiri in a CIA drone strike has been touted as a political win for President Joe Biden, a vindication for an over-the-horizon counter-terrorism strategy, and even as “justice served.” Yet there appears to be little interest in whether it was lawful. The media has not seriously raised the question, the punditry has not addressed it, and the government has not yet provided any official legal basis for the killing (to be fair, some law and policy blogs, such as Lawfare, Just Security, and Articles of War, have begun to address it). This disregard is problematic, as there are indeed serious questions as to the lawfulness of this strike – and people should be demanding answers.

Let us acknowledge up front that Ayman al-Zawahiri was the second-in-command of al-Qaeda at the time of the 9/11 terrorist attacks on the United States – which were heinous crimes, terrorist acts, and amounted to an “armed attack” against the United States under international law.

Nevertheless, his killing some 21 years later requires a legal justification under international law. What is more, the drone strike also constituted a use of force against Afghanistan, with which the United States is no longer engaged in an armed conflict – and so that too requires legal justification. This essay briefly reviews the international law regimes that are implicated (leaving aside entirely the domestic law considerations, such as the 2001 Authorization for Use of Military Force), and some of the questions regarding the lawfulness of the strike that arise under each regime – and argues that these questions are important.

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Japan’s Definition of Armed Attack and ‘Bloody Nose’ Strikes Against North Korea

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(published in Just Security, Feb. 1, 2018)

Shinzo?_Abe_and_Donald_Trump_in_Palm_Beach_(2)There has been an important discussion in the last couple of weeks over the legality of possible limited strikes, part of a so-called “bloody nose” strategy, by the United States against North Korea. The main issue of that debate has been quite conclusively determined: such a strike would not be legal. And as Victor Cha, the White House’s pick, until recently, to be ambassador to South Korea, laid out in an op-ed this week, it would be deeply misguided as a policy choice. There remains more to be said, however, about a couple of interesting and potentially important questions regarding Japan’s position in relation to such strikes. One, which has been raised but not fully answered in the discussion, relates to whether Japan has already somehow consented in advance to U.S. action in collective self-defense of Japan. The second, which has not been explicitly addressed at all, is whether Japan defines “armed attack” for purposes of triggering the right of self-defense differently than does the U.S.

To recap briefly, the debate was set off by an essay in Lawfare by two West Point professors, Army Lt. Col. Shane Reeves and Army Capt. Robert Lawless, arguing that limited strikes on North Korea would be lawful. Virtually all elements of their argument were quite persuasively demolished by Kevin Jon Heller in Opinio Juris, and Michael Schmitt and Ryan Goodman here in Just Security.

A central premise of one strand of the Reeves/Lawless argument was that the test-firing of a North Korean intercontinental ballistic missile (ICBM) into the territory of Japan could constitute an armed attack, triggering an American right to use force as an exercise of collective self-defense. They were dismissive of the position of the International Court of Justice (ICJ) that collective self-defense requires a request from and consent of the country under attack, suggesting that the 1960 Treaty of Mutual Cooperation and Security between the U.S. and Japan (the “U.S.-Japan Security Treaty”), “may provide a basis” for American action. They went on to note that, in their view, Japan was in any event very unlikely to oppose American strikes in defense of Japan.

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