National Security Lawyering in the Post-War Era: Can Law Constrain Power?

Abstract

Do we face a rule of law crisis in U.S. national security law? The rule of law requires that people and institutions are subject and accountable to law that is fairly applied and enforced. Among other things, this requires that those bound by the law not be the judges in their own case. Does national security lawyering meet this standard? And if not, what should be done about that? This Article seeks to answer these questions. It begins by demonstrating a key source of the problem: There are almost no external constraints on national security lawyering. Congress and the courts have mostly opted out of making decisions in cases involving national security, our international partners find it difficult to discipline a hegemon, and the press and advocacy organizations are constrained by the fact that the matters on which they seek transparency are, generally speaking, classified, and thus revealing them is a crime. In short, the ordinary checks do not apply. The absence of any real oversight means that those interpreting the law are almost exclusively the lawyers for the very same actors regulated by that law—members of the U.S. executive branch. Drawing on historical research and interviews with former national security lawyers from the last four presidential administrations, this Article describes the group of lawyers most centrally involved in addressing national security law questions, now known as “the Lawyers Group.” Even at its best, the Lawyers Group process was insufficient to adequately protect the rule of law. The Trump administration, in apparently ignoring many of the legal constraints on the President’s national security authority, has laid bare problems that existed all along. In doing so, it has created an opportunity to strengthen the rule of law in national security lawyering as we move into a new presidential administration. It is up to us to seize it.

Keywords: international law, foreign relations law, national security law, lawyers group

JEL Classification: K10, Z18