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Lawfare, Just Security, and the Preservation of Nuance in National Security Law & Policy

 

By now, many readers have likely seen Emily Bazelon’s piece in Sunday’s New York Times Magazine about Lawfare—the gist of which is that the Trump administration has pushed most of Lawfare’s contributors (who “generally tend to be hawkish and more sympathetic to the executive . . . than a lot of writers in the national security space”) to be more hostile to the President and more critical of his actions and assertions of authority—to “air[] an outpouring of fury at the government,” in Bazelon’s words. Then, her piece sets up a contrast with Just Security:

In the past, Lawfare contributors have sparred with their equally knowledgeable but generally more liberal counterparts on another smart and topical legal blog called Just Security. Some Just Security writers seem to think they’ve essentially won the argument. “Lawfare has typically supported a strong executive on national security and intelligence matters,” David Cole, the national legal director of the A.C.L.U., wrote to me in an e-mail. “Now that Donald Trump is president, its authors are beginning to see the real perils of that position. The last thing anyone wants is an unchecked President Trump.”

Although we have no objection to being called “equally knowledgeable” and “smart and topical” (and, we can admit, even “generally more liberal”), we do think readers of the Bazelon piece could walk away with two distinct misimpressions about the state (and ideological valence) of discourse among national security law and policy wonks today. With that in mind, we thought it might be useful to write a post that identifies those potential misimpressions, one about the attractiveness of the views of some of Lawfare’s most visible contributors, and one about the significance of the nuanced space between many members of the two mastheads, more generally.

Taking the latter point first, it really shouldn’t come as a surprise to anyone that differences that seemed stark and fundamental during relatively centrist presidencies (at least on national security issues—which, we think, is an accurate description of at least the last two years of the George W. Bush administration and all eight years of President Obama’s tenure) look entirely modest when set against the radical (and radically hawkish) approach President Trump appears to be taking in this field. That’s not a reflection on our ideological disagreements shrinking, but rather of their significance paling in comparison to the increasing points of consensus vis-à-vis the incumbent Administration. And so inasmuch as Bazelon’s piece might be read by some to suggest that our friends who have typically been to our right on most of the big questions in our field have now moved closer to our way of thinking, color us unconvinced (especially Steve—the one person who’s a member of both mastheads).

Turning to the first point, Bazelon’s piece is especially provocative in its discussions of the views of our good friends Ben Wittes and Jack Goldsmith, two of Lawfare’s three founders (along with Bobby Chesney). Thus, Bazelon quotes Ben as saying that he is “an unabashed apologist for strong national-security authority,” and that “[t]hat’s why I might be more alarmed by Trump. If you believe, as I do, that the scope and range of presidential authority is great, that puts a lot of weight on the civic virtue and decency of the individual who holds the office.” And Bazelon holds Jack out as the epitome of the interesting moment in our field, noting that his criticism of the Trump administration “carries particular weight” before flagging how he has “argued for having faith in the institutional and legal checks that were strengthened during Bush’s second term, and continued during Obama’s years in office.”

Ben and Jack can certainly speak for themselves, and we very much hope that they will. But it seems important to us to stress the potential downsides of seeing them as the canaries in President Trump’s executive power coal mine. After all, Jack has been quite clear that relatively minor concessions on the part of the administration, or relatively minor moves by Congress, have represented (and will represent) major successes for oversight and accountability. For example, Jack thinks that Attorney General Sessions’s recusal from one aspect of the Russian investigation is “a hugely important step toward inevitable accountability.” Jack has also written that the Republican-controlled Congress has convincingly shown that it will engage in pushback on a broad set of issues as demonstrated by the Senate Judiciary Subcommittee on Crime and Terrorism’s investigation into Russian interference in the election. (For an example of a more skeptical view on that item, see Andy Wright’s “Five Reasons Why the Republican Russia “Investigation” Falls Short”.) And while we worry most about an empowered Trump-Bannon White House, Jack has written about his concerns that the Office of the President will be weakened: “I’m not yet panicked about the too-weak Trump presidency (though I am more worried about it than I am about a too-strong Trump presidency).”

To similar effect, Ben’s reaction to his own fears of the potential for unchecked powers is to quite rightly sound alarm bells about the dilution (if not destruction) of existing institutions meant to limit the Executive Branch, without embracing calls for more systematic oversight and accountability reforms that some of us have been making and/or endorsing for years. If Ben really believes that these institutions aren’t sufficient in their current form to restrain a President who lacks civic virtue and decency, are we just to throw up our hands and curse our fate—or instead work toward stronger institutions?

Put another way, we’re troubled not by the substance of our friends’ views (which we’ve long appreciated even as we’ve disagreed), but by the related notions that they’ve substantially moderated those views to help underscore the need to check the Trump administration and that satisfaction of those moderated views is the bellwether for whether President Trump’s approach to national security is one we should support. To us, at least, satisfaction of many of the concerns raised by our Lawfare friends is a necessary condition before we’ll ever have faith in the national security policies of the current Administration, but by no means a sufficient one. At that point, we’d be back to our old disagreements—but, perhaps contra the spirit of Bazelon’s piece, our old disagreements very much still remain, and remain both significant and relevant.

All of that being said, we agree with Bazelon that we share many common concerns with our friends at Lawfare these days, and, as we’ve already noted, see much work to do together in the years ahead—in service of the security of our country and of the fundamental rule of law values to which we all subscribe. And it should not be missed amidst all this navel gazing that our two websites are not designed to control content or to bend it toward any of the editors’ views—so that it will always be at least somewhat inaccurate to generalize Just Security as the “lefty Lawfare,” or Lawfare as the “right-of-center Just Security.” Rather, each is built to raise the level of discourse so that readers can see a range of diverse perspectives both within the pages of Lawfare and of Just Security and across and beyond the two platforms. We’re a two-newspaper town, and, at the end of the day, we like to think that we’re all the better for it—even President Trump.


About the Authors

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).

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