A panel of top national security lawyers in the executive branch discussed the nuances of their work Nov. 5 during the “25th Annual Review of the Field of National Security Law,” sponsored by the ABA Standing Committee on Law and National Security, at the Capital Hilton in Washington, D.C.
“We provide different perspectives on efforts to advance national security within the limits of the law,” said Mary E. McLeod, acting legal adviser for the U.S. Department of State, of the panelists, who together represent the White House, Central Intelligence Agency, Joint Chiefs of Staff, National Intelligence Program and the U.S. Departments of State, Defense and Justice.
As the Obama administration’s national security legal team, the panelists said that the substance of their work consists of providing the best objective understanding of what the law says and preparing formal opinions for policymakers.
But cooperative interaction among colleagues can be a challenge when the agencies are not in agreement. “Lawyers come [to meetings] with their agency’s position well deep in their minds,” said Robert Taylor, the Defense Department’s principal deputy general counsel and acting general counsel.
Ultimately, these collegial challenges are necessary to provide frank and well-rounded legal advice to top officials.
“We [the agencies represented by the panelists] are good checks on each other,” said Brian Egan, legal adviser to the National Security Council and deputy counsel to President Obama. “We operate by consensus and present policymakers with the legal consequences.”
“If there is disagreement, [those] perspectives are presented as potential risks… not on how agencies disagree,” said Robert Litt, general counsel, Office of the Director of National Intelligence.
Looking forward, panelists said that they hope their intelligence and national security agencies develop a framework for cybersecurity; tackle the challenges and guidelines for surveillance; and address less-evident national security risks, such as climate change and treaty agreements.
James E. Baker, chair of the ABA Standing Committee on Law and National Security, served as moderator of the panel. Other panelists included: Darse E. “Del” Crandall Jr., U.S. Navy legal counsel to the chairman of the Joint Chiefs of Staff; Caroline Krass, general counsel of the Central Intelligence Agency; and Karl R. Thompson, principal deputy assistant attorney general of the Justice Department’s Office of Legal Counsel.