Confirm the Legal Adviser

Harry S. Truman Building

The Harry S. Truman Building, the State Department’s headquarters. Image credit: Ctac via Wikimedia Commons.

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

Tomorrow, May 19, 2015, the Senate Foreign Relations Committee will finally hold confirmation hearings for NSC Legal Adviser Brian J. Egan to become the twenty-third Legal Adviser of the State Department. The Department has been without a Senate-confirmed Legal Adviser for more than two years. During that time, the Acting Legal Adviser, former Principal Deputy Legal Adviser Mary E. McLeod, has done an outstanding job advising Secretary of State Kerry. McLeod is the Senior Career Attorney at “L,” as the Office is widely known, and has served there with distinction since 1977, a remarkable run during which she also served as Legal Adviser to the U.S. Mission to the United Nations under then-Ambassador Susan Rice.

When I returned to academia in January 2013, I fully expected that a new Legal Adviser would be in place within a few months. Initially, President Obama nominated former NSC Legal Adviser Avril Haines to the position, but withdrew her nomination and instead appointed her Deputy Director of the CIA. She has since been named Deputy National Security Adviser, a position that well befits her great ability. Since then, the two branches share responsibility for the continuing vacancy. After withdrawing the Haines nomination, the Administration took more than a year to send Brian Egan’s name forward; the Committee then did not schedule his confirmation hearing for another eight months. But whatever the cause, as this chart shows, the current vacancy of twenty-eight months without a Legal Adviser has now stretched into the longest in modern American history. By contrast, the vacancy between President George W. Bush’s first and second Legal Advisers lasted a little over one month.

Now that we have finally reached this point, there is every reason to confirm Brian Egan swiftly. As others have chronicled, there is no doubt that Brian is well-qualified for the job. He has now served for some four years as Deputy Legal Adviser to the National Security Council and then as Legal Adviser to the NSC (a position that doubles as Deputy White House Counsel), where he has worked smoothly with current Counsel to the President Neil Eggleston. Brian is an experienced and able public international lawyer, who is widely respected in the Beltway’s national security community, and who would hit the ground running on all the front-burner international legal issues facing the Administration, including those raised by the Islamic State, Russia/Ukraine, Iran, Syria, immigration, sanctions, trade (TTIP and TTP) and other legal domains of ongoing controversy such as cyber, drones, and detention. He well understands both the White House and interagency legal process, having previously spent time as a senior Assistant General Counsel at the Treasury Department and at the Justice Department, not to mention five years as an attorney in a fine D.C. private practice. He knows L particularly well, having spent four years there as a career lawyer, which would make him one of the first career lawyers in L to become Legal Adviser since Green Hackworth, who went on to serve as U.S. judge on the International Court of Justice. From the White House, Brian has consistently demonstrated quiet leadership in guiding the interagency lawyers group on important international law issues. To boot, Brian works tirelessly and radiates integrity and humility, so is well-liked and respected both within the interagency process and at the State Department, where the career lawyers in the Legal Adviser’s office would welcome him back warmly.

An unspoken question the Senate Foreign Relations Committee will likely ask is not “why confirm Brian Egan as Legal Adviser?,” but “given the delay, why is it urgent to confirm a Legal Adviser at this point?” Of course, Brian Egan is well-qualified, but so is Mary McLeod, and if she is already doing such a good job as Acting Legal Adviser, why is the fact of Senate confirmation meaningful? Why does it matter whether any new Legal Adviser gets confirmed, particularly with only a year and a half left in this administration? Setting aside the real possibility that the new Legal Adviser could serve well into the next administration, the answer is simple: having a Legal Adviser who has been nominated by the President and confirmed by the Senate significantly enhances the position’s credibility and heft both outside and inside the executive branch, as well as his accountability to the legislative branch.

First, as my predecessor, John Bellinger, has argued, the Administration needs a confirmed Legal Adviser to explain its international legal positions to a broad array of external constituencies: Congress, the public, foreign governments, intergovernmental organizations, and NGOs. As I suggested in speaking to the American Society of International Law five years ago, the Legal Adviser is seen as America’s principal spokesperson on international law and has acquired over time a distinctive “Duty to Explain” U.S. legal rationales in hot-button situations, particularly with respect to the use of force. Especially when legal positions are emerging or subject to debate — as in the case of the legality of drones or cyber conflict — foreign legal advisers often asked me “whether I spoke for Secretary Clinton and President Obama.” Their underlying thought was that the Obama/Clinton foreign policy rested on different political assumptions than did the GWBush/Powell-Rice foreign policy, and that someone nominated and confirmed by the current administration spoke for its concerns in a way that even the most skilled career lawyer could not.

By comparison, think of the difference between Solicitor General Don Verrilli versus his principal career deputy speaking for this Administration regarding the constitutionality of Obamacare or the legality of same-sex marriage. Or compare the credibility of Solicitor General Archibald Cox versus his principal deputy in speaking for the Kennedy Administration to the Supreme Court on civil rights. It does not diminish either SG’s extraordinarily able principal career deputy to say that having the President’s own lawyer there personally delivering the Administration’s legal message makes crystal clear that it comes from politically accountable decisionmakers, not just the career civil service.

Second, having a confirmed Legal Adviser is perhaps even more important for the office’s credibility inside the executive branch. L’s credibility outside the executive branch stems in good measure from its credibility inside, which is deeply derivative of the real and perceived relationship between the Legal Adviser and the Secretary. As anyone who has ever served in government knows, “the mood at the table” is different when a confirmed Legal Adviser is there at an interagency meeting, particularly when the legal counsel of the Defense Department and the intelligence agencies with whom interagency debates are being conducted are also Senate-confirmed officials.

This is particularly true with respect to the Legal Adviser’s Office, which advises both an institution, the State Department, and a particular Cabinet member, the Secretary of State. L has existed for 166 years, and has justly earned its reputation as being as distinguished a legal office as we have in the United States government, rivaled only by the Solicitor General’s Office. Its genuinely unique history has generated scores of international law alumni in teaching, in practice, and international judging over many years. For more than eight decades, when Congress mandated that the Legal Adviser be a confirmed officer, the Legal Adviser has been a political appointee chosen by the Secretary to be his or her General Counsel. The Legal Adviser reports directly to the Secretary, sits in the Secretary’s inner circle and attends the small early morning meeting attended only by perhaps a dozen others in the Department. This proximity enables L to be “in at the takeoff” of every new foreign policy episode, which helps it to establish, preserve and publicly explain the legal and political legitimacy of the actions that follow. At the same time, L’s top-notch collection of more than 200 career lawyers and 25 legal offices mirror the State Department’s policy functions, often giving legal advice directly to the client bureaus. So the Legal Adviser is both part of the Secretary’s team of crisis managers, while running a sizable office of professional international lawyers that is kept in the loop with regard to all departmental matters. This unusual organizational structure has created a unique synergy and balance among three faces of the Legal Adviser’s Office — Political L, Career L, and Scholarly L — that is inevitably disrupted when no “Political L” has been confirmed.

Without a confirmed Legal Adviser, L has been effectively understaffed at its most senior ranks for more than two years, forcing Mary McLeod to do double duty as both the Chief Operating Officer of a global law firm and as the Office’s public face. Because the Deputies can capably run the day-to-day of the Office, Legal Advisers tend to be known for times when they became the international legal face of the administration, for example, when representing the U.S. before the International Court of Justice or another high-profile body. As Michael Scharf and Paul Williams have chronicled, the Legal Adviser’s greatest challenge comes when formulating legal advice that, in their words, guides those “shaping foreign policy in times of crisis,” e.g., being dispatched by the Secretary as an “action officer” to run a particular legal-political task (as the Carter Administration’s Legal Adviser Roberts Owen did in helping Deputy Secretary Warren Christopher negotiate the Algiers Accords that ended the Iranian Hostages Crisis or as I was asked to do during the Chen Guang Cheng incident). In these circumstances, the Legal Adviser has the particularly challenging job of determining and advising on the run which options are both legally available and politically wise. In such moments, it matters greatly to all concerned that the Legal Adviser is someone who has been specifically chosen by the President and Secretary, and vetted and approved by the Senate.

For that reason, tomorrow’s hearing is just as important for Congress as for the Executive Branch. It allows the Senate to fulfill its important and historic constitutional function: not just to consent to a particular person’s appointment, but to advise the President and Secretary on how it prefers them to manage the difficult domestic and international legal issues of process and substance going forward. Senate confirmation is the way in which the Senate — and particularly its Foreign Relations Committee — establishes its own relationship with the Legal Adviser, who will come back to the Hill repeatedly to brief Senators and their staffs, to explain legal positions that have not yet been publicly released, and to explain why certain legal options were selected.

Leaving the position vacant serves no one well, and the Senate least of all. We need a confirmed Legal Adviser just as much as we need a confirmed Attorney General or Solicitor General, and Brian Egan fits the bill most ably. He deserves a swift confirmation. 

About the Author(s)

Harold Hongju Koh

Sterling Professor of International Law, Yale Law School; Legal Adviser, U.S. Department of State (2009-13), Assistant U.S. Secretary of State for Democracy, Human Rights and Labor (1998-2001)