The Missing Moral Conscience of U.S. Foreign Policy: Where is the State Department’s Legal Adviser? [Updated]

Later today, the Senate will hold confirmation hearings for Caroline Diane Krass to serve as the CIA’s General Counsel, a position that just recently became vacant. Not letting this office remain open for long is evidence of the importance and respect that the President and the head of the CIA, John Brennan, assign that role. Today is thus a great moment for the agency’s office of general counsel. It is also an unfortunate and stark reminder that almost a full year has passed since the post of Legal Adviser of the State Department — the nation’s chief legal officer on international law – has remained vacant.  As many readers of this blog know, it is not that the Senate has failed to approve a nominee for that position. The President has currently not nominated one.

Harold Koh, the former Legal Adviser of the State Department, left that post in January 2013. Since that time, attorneys in the Office of Legal Adviser have been called on to serve our nation on the most challenging issues. They have worked closely alongside Secretary Kerry to craft important legal instruments such as the international pact to help ensure Iran never develops nuclear weapons, the Security Council resolution to destroy Syria’s chemical weapons, and the bilateral security agreement to protect our security interests in the Afghanistan theatre.

These public servants deserve a leader. President Obama should nominate one soon if for no other reason than the morale inside the Office. A career senior lawyer has been performing a valiant job as “acting legal adviser,” but everyone knows that’s not the same. For instance, from 2010-2012, the Office published an average of 5 major public remarks per year by the then-Legal Adviser. In the past twelve months: none. And, as another example, when Obama gave his landmark speech on wartime policy at the National Defense University in May of this year, the President was reportedly influenced significantly by the ideas of Harold Koh from his time in the administration. For those of us close to the Office of Legal Adviser it also served as another reminder that the President has nobody to continue to fill that role.

Another compelling reason to fill the position expeditiously is the moral leadership of the United States in the world. Former Judge and President of the International Court of Justice, Stephen Schwebel once said, “The State Department Legal Adviser heads the most important office in the world for the practice of public international law.” In the new year, the United States will go before the UN Human Rights Committee, which will review the past several years of US compliance with the International Covenant on Civil and Political Rights. What an embarrassment it will be not to have our Legal Adviser firmly in place before then.

Finally, much of Executive Branch policy is forged through interdepartmental debate and discussion where powerful figures match wits with one another. The Defense Department, Department of Homeland Security, and now CIA will all soon have their chief legal officers in place. Mr. Kerry’s department does not even have a nominee yet.

Pulitzer Prize winning reporter, Roy Gutman calls the State Department Legal Adviser “the custodian of America’s legal relationship with the world, the self-described moral conscience of U.S. foreign policy.” He is right. What then does it mean not to have one?

[Update: Due to reader feedback, I should make a few things clear. I do not mean to imply that the current Office of the Legal Adviser lacks a moral compass or anything like it. On the contrary, as I mentioned, over the past year attorneys inside the office have accomplished extraordinary feats in some of the most important issues facing our nation. And they have done so with excellence of leadership from the top. Nonetheless, the office cannot operate with the same public profile and carry the same weight inside the government in many respects until this position is filled. It sends a poor signal by the President and Secretary Kerry to fail to put forward a nominee.]

  

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). You can follow him on Twitter @rgoodlaw.