National Security and the Trump Transition: An Agenda for Legal Analysts

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This year’s election was always going to provoke a flurry of questions about the future of U.S. national security law and policy—from discussions about changes to substantive law and oversight mechanisms to personnel and process. But it should go without saying that Tuesday’s results have radically increased both the number and significance of the various lines of inquiry. They have done so in part because of the significant distance between the views of the President-Elect and both the current President and second term of the former President on many of the key issues, and because of the far more dramatic turnover we should now expect with regard to the principals and other key players.

When we launched this blog three years ago, we wrote that “We hope to become a ready resource for decision-makers, analysts, and practitioners who address difficult U.S. national security law issues, and an invaluable reference for those simply trying to stay abreast of the daily developments in this ever-moving field.” Now more than ever, we aspire to the same goals—to both identify what we view as the central issues with which everyone invested in our field must grapple, and to do our best to educate insiders and outsiders alike on the key developments and considerations. Toward that end, we have been working with our editorial board to identify some of the most important topics of focus for the coming weeks and months. We intend through this post both to preview some of the coming attractions and to solicit readers’ input on additional areas in which you would like us to focus our energies.

I. Agenda for the Final Days of the Obama Administration, including

1. Opportunities and objectives for transparency
2. Crystallization of internal legal standards governing uses of force / surveillance
3. Guantánamo

II. The Start of the Trump Administration, including,

1. Trump’s mandate
2. Role for principled lawyers to participate in the administration
3. Senate confirmation of nominees — What are the key appointments and where to invest advocacy resources

III. Internal Executive Branch Checks and Balances, including:

1. Legal decision rules and the national security lawyers group
2. The role of agencies and civil servants
3. Whistleblowing – defining the boundaries
4. Refusal of unlawful or unethical orders

IV. New Opportunities, including:

1. Prospects for new international institutions
2. Prospects for transnational efforts
3. The new federalism
4. Resurgent courts

V. New Threats, including:

1. Constitutional rights (including surveillance excesses; freedom of the press, etc.)
2. Detention and interrogation operations (Guantanamo 2.0; Torture 2.0)
3. Targeting operations
4. Impeachable offenses and war crimes

 

Image: Republican presidential nominee Donald Trump, Cedar Rapids, July 28, 2016, speaking on national security policy – Max Goldberg Wiki Commons 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter @rgoodlaw.

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).