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UCLA Law Review National Security Lawyering in the Post-War

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UCLA Law Review National Security Lawyering in the Post-War U.C.L.A. Law Review National Security Lawyering in the Post-War Era: Can Law Constrain Power? Oona A. Hathaway 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. AUTHOR Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School. I served as Special Counsel to the General Counsel at the U.S. Department of Defense in 2014–2015, during which time I held TS/SCI clearance and participated in legal decisions relating to U.S. national security. An earlier version of part of this Article was cleared by the Publications Review Board at the U.S. Department of Defense. The views expressed in this Article are my own and do not reflect the official policy or position of the U.S. Department of Defense or the U.S. Government. My thanks to participants in the summer 2020 Chicago Law School Faculty Workshop, 2019 Yale Law School Faculty Workshop, 2019 Harvard Faculty Colloquium, 2019 NYU School of Law Hauser 68 UCLA L. REV. 2 (2021) Colloquium, the 2016 Columbia Law School National Security Workshop, and the 2015 Yale- Duke Foreign Relations Law Workshop, especially Gabriela Blum, Curtis Bradley, Ashley Deeks, Walter Dellinger, Noah Feldman, Owen Fiss, Abbe Gluck, Jack Goldsmith, Ryan Goodman, Daniel Hemel, Aziz Huq, Rebecca Ingber, Dawn Johnsen, Harold Hongju Koh, Marty Lederman, John Manning, Troy McKenzie, Naz Modirzadeh, Samuel Moyn, Robert Post, David Pozen, Daphna Renan, Cristina Rodriguez, Ben Saul, Matthew Waxman, and Andrew Weissman. Th anks, as well, to Jameel Jaff er, Mary DeRosa, and Robert Litt for their thoughtful feedback. My thanks to Andrea Basaraba, Sumer Ghazala, and the amazing librarians at the Yale Law School Library, especially Lucie Olejnikova and Evelyn Ma, for excellent research assistance. Finally, I am deeply indebted to the many current and former national security lawyers who spoke with me in the course of my research, from whom I learned so much. TABLE OF CONTENTS Introduction .......................................................................................................................................................6 I. The Context for National Security Lawyering ............................................................................ 15 A. Courts ..................................................................................................................................................... 15 B. Congress ................................................................................................................................................. 20 C. Other States ........................................................................................................................................... 26 D. The Press and Advocacy Organizations ........................................................................................... 29 II. The History of National Security Lawyering in the United States .................................... 32 A. National Security Lawyering in the Early National Security Council Era .................................. 33 B. The Iran-Contra Scandal and Its Aftermath: 1985–1992 ............................................................... 38 C. The Beginning of the “Lawyers Group”: 1993–2001 ...................................................................... 45 D. September 11 and Its Aftermath: 2001–2009 .................................................................................. 53 III. The Lawyers Group Era ........................................................................................................................ 59 A. The Lawyers Group During the Obama Administration .............................................................. 60 B. Drawbacks of the Lawyers Group Era ............................................................................................... 66 1. Secrecy ............................................................................................................................................ 67 2. Th e Paradox of a Consensus-Driven Process ........................................................................... 69 3. Th e Legal Standard ....................................................................................................................... 71 IV. Looking Ahead ......................................................................................................................................... 77 A. Is There a Problem to Solve? .............................................................................................................. 77 B. Four Proposals to Strengthen Rule of Law in National Security ................................................... 81 1. Strengthen Congress as a Legal Counterweight to the President by Creating a Congressional OLC .............................................................................................. 83 2. Bring the Courts Back in by Giving Congressional Committees Standing to Sue ............................................................................................................................................... 89 3. Inform the Press and Public by Granting Congressional Committees the Power to Request a Legal Explanation ................................................................................ 94 3 U.C.L.A. Law Review 4. Empower Other States by Creating an Outcasting Council .................................................. 98 C. Why a New President Should Accept—and Even Encourage—Limits ..................................... 100 Conclusion ...................................................................................................................................................... 101 4 5 6 68 UCLA L. REV. 2 (2021) INTRODUCTION On January 3, 2020, the United States launched a drone that killed Qassem Soleimani, an Iranian General and head of the Quds force. Commentators immediately started asking questions about the legal basis for the strike. The administration was silent. On January 10, Senator Tammy Duckworth wrote a letter to Secretary of Defense Mark Esper demanding an explanation: “I ask that no later than Monday, January 13, 2020, DoD post on its public website the specific legal memorandums or simply the list of authorities under which it acted.”1 January 13 came and went without any formal legal explanation. Meanwhile, members of the U.S. Congress and the public cried foul, pointing out several likely legal violations, and Congress approved a nonbinding resolution denouncing the order.2 Some began to wonder: How are these kinds of legal decisions made? When the president decides to take an action that might embroil the country in a war, how does law come into the picture? (Or does it come into the picture?) And what remedies does the public or Congress have if a president seems determined to ignore the law? This Article seeks to answer these questions and provide the broader historical and legal context for the process of national security lawyering. It shows that national security law is not like any other area of law. To begin with, the stakes are unusually high. National security law governs “those activities which are directly concerned with the [n]ation’s safety, as distinguished from the general welfare.”3 The activities the law governs, then, are literally matters of life and 1. Letter from Senator Tammy Duckworth to Mark Esper, U.S. Sec’y of Def. (Jan. 10, 2020), https://www.justsecurity.org/wp-content/uploads/2020/01/20.01.10-Senator-Duckworth- Letter-to-Secretary-Esper-Legal-Authority-to-Conduct-Operation.pdf [https://perma.cc/89H5- 36HL]. 2. See Catie Edmondson & Charlie Savage, House Votes to Restrain Trump’s Iran War Powers, N.Y. TIMES (Jan. 9,
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