National Security Legal Advice in the New Administration

As the incoming Trump team grapples with the first days of its transition, it should not forget that the most urgent question regarding foreign affairs and national security law may not be personnel or policy, but process: How best to gather collective legal advice on foreign relations, national security, and related international law issues for presentation to the President and his senior policy advisers?

An utter failure of process led to some of the greatest disasters of the last Republican administration. As Charlie Savage recounts in his book Takeover, the military commissions order later declared unconstitutional in Hamdan v. Rumsfeld, for example, was drafted by the Assistant Attorney General of the Office of Legal Counsel at the Department of Justice supervised by the Counsel to the Vice-President. Apparently left entirely out of the process were the Attorney General, the National Security Adviser, the Departments of State and Defense and their lawyers. Similar process fouls characterized the infamous Torture Memo and other OLC opinions that have since been withdrawn by the Bush and Obama Administrations.  

During the early days of the Obama Administration, the National Security Council revived the practice of regularly convening an interagency group of senior agency general counsel. Known as “The Lawyers’ Group,” this body is currently chaired by the NSC Legal Adviser – double-hatted as a Deputy White House Counsel. The Lawyers’ Group includes the General Counsels of the Departments of Defense and State, the Central Intelligence Agency, the Office of the Director of National Intelligence, the Joint Chiefs of Staff, as well as the Office of Legal Counsel at the Department of Justice. Depending on the issue, the General Counsel at the Department of Treasury or the Office of the U.S. Trade Representative would participate as well. Variants of this interagency process extend back half a century. As Kennedy Administration Legal Adviser Abe Chayes’ memoir of the Cuban Missile Crisis recounts, an interagency lawyers group advised the policymaking “ExComm” that operated successfully during the Cuban Missile Crisis during the Kennedy administration. An interagency group exclusively comprised of senior lawyers also functioned smoothly throughout the Clinton administration.

Having participated in this process for nearly four years, I believe that the interagency legal group should be retained as the most effective and tested means yet developed for unearthing, vetting and systematically answering national security legal questions and injecting the answers into the national security policy process. The Lawyers Group has proven itself to be a successful, reliable interagency mechanism for asking and answering difficult national security legal questions, and smoothly working those answers into a fast-moving policy discussion. The Group’s mandate is also sufficiently flexible that it can be adjusted, as the situation demands, to address international law issues with less direct national security implications (e.g. Brexit, climate change, or international economic law issues).

The greatest advantage of the Lawyers’ Group process is that it ensures that the interagency policy process deliberates only among policy options that a consensus of expert senior lawyers has already decided are lawful. It ensures that the lawfulness of public decisions is constantly considered. As Chayes wrote, “Legal justification is part of the over-all defence of a public decision . . . . In fact, the requirement of justification suffuses the basic process of choice. . . . There is a continuous feedback between the knowledge that the government will be called upon to justify its action and the kind of action that can be chosen” (p. 103). In fact, as Savage observed in his more recent book, Power Wars, the Lawyers’ Group “provided advice to the policymakers at each stage in the bureaucratic process, taking assignment from them and presenting legal issues in high level meetings. Operating alongside the hierarchy of policymakers, it set the framework within which a decision could be made.” …

This structure gave the lawyers the first shot at many decisions and they remained to address any wrinkles that arose. . . . This meant that the [Obama] administration, though it made its share of mistakes, was cautious and deliberate. It thought through all the reasons not to take a proposed action before acting and made sure that every part of the government that had an interest in a matter was given a chance to weigh in. It was willing to revisit a previous decision in light of new evidence. . . . And as a matter of legal substance, this mind-set ensured that a full range of views was thoroughly aired (pp. 64, 66).

Once fully staffed by Senate-confirmed officials, the Lawyers Group functioned best with regular (sometimes weekly) meetings that advance-spotted issues bubbling out of each agency, even while answering ad hoc questions that arose from meetings of Interagency Policy Councils (IPCs), Deputies Committees (DCs) or Principals Committees (PCs). Obviously every administration is free to decide for itself how to hold its internal meetings. But what this interagency process helped to accomplish was that essentially all legal decisions of import regarding US national security issues — including confidential and covert operations — and any change in US government legal position, were vetted through the general counsels of all the relevant agencies.  Different agencies have different equities, perspectives, and areas of expertise and getting the input of all relevant legal arms of our vast executive branch is vital to sound decisionmaking.  Key legal decisions should not be made off in secret in a corner by a closed group of decision makers.

Of course there will be times when the Lawyers’ Group will fail to come to a unified view. See, for example, pp. 980-98 & text accompanying notes 72-75 in the attached. In such cases, exigencies may demand that the President (advised by the White House Counsel) determine which legal view is correct, with special deference to the department or agency that has traditionally had the lead in construing the particular area of law. But even those moments of division are healthy and protective of the rule of law. It ensures the President has a full range of views, and that each chief legal officer gets to weigh in and try to persuade his or her colleagues of their viewpoint. Even when there is interagency disagreement, transparency and robust process within the executive branch is the best way to ensure that all agency equities are considered, and that bad decisions are avoided.   Indeed, a key question going forward is whether there should be a forward-looking, standardized process for declassifying and/or making public, at least in summary form, the legal advice generated by this interagency process. I have elsewhere written about the national security legal adviser’s duty to explain. An established means of disclosing legal advice generated by the interagency process could enhance the credibility and legitimacy of the national security function, help clarify administration positions, and reduce leaks.

For observers, the fate and future of the interagency lawyers’ group will be an important canary in the mine regarding the Trump administration’s commitment to the rule of law. This process is now the system’s “default.” If the new administration abandons this process or deviates significantly from it, we may treat that decision as a red flag signaling that the emerging policy process is trying to evade or avoid serious internal legal analysis.

In short, the new administration will face many challenges. Whether to retain the interagency legal process would seem to fall into the category of “If it ain’t broke, don’t fix it.” But if the process disappears, without some visible substitute, we can and should treat that sign as an early fire alarm that the new administration is not serious about carefully vetting the lawfulness of its national security policies. 

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)