December 04, 2017

Good judgment critical when practicing national security law

In “Letter from a Birmingham Jail,” Reverend Dr. Martin Luther King Jr. responded to the question of why he traveled from Atlanta to lead a civil rights protest in Alabama by answering, “I am in Birmingham because injustice is here.” Later in the letter, we read his now famous words: “Injustice anywhere is a threat to justice everywhere.”

The eloquence of that letter should serve as inspiration to all lawyers, according to Judge James E. Baker, chair of the American Bar Association Standing Committee on Law and National Security and former chief judge of the United States Court of Appeals for the Armed Forces.

“It reminds us about the inspiration of the law and reminds us that we’re performing a task much greater than ourselves,” Baker said. He noted that because the letter was written in a jail cell, it has even more meaning, because it proves that Dr. King was willing to pay the penalty for his actions.

In practicing national security law, having an overall understanding of general ethics is the best foundation for successful practice, Baker said during the 27th Annual Review of the Field of National Security Law conference in Washington, D.C., sponsored by the ABA Standing
Committee on Law and National Security
and held on Nov. 16-17.

A thorough grounding in the ethical practice of law will prepare lawyers to cope with the pressures of national security practice. For example, always remember that lawyers are public citizens with special responsibility for the quality of justice and that a lawyer has a duty to uphold the legal process while advocating on behalf of the client.

Baker said the evolving role of law — and lawyers — in national security matters post-9/11 has not been without controversy, but a strong commitment to doing the right thing the right way lays the groundwork for a successful practice. That means, for example, if someone ought to know something, they should be told, whether the law requires it or not.

Ethics provide the principles that most directly relate to the practice of national security law, Baker said. A commitment to ethics rather than rules better addresses the sorts of challenges that arise in national security practice, challenges that require good judgment rather than yes or no answers. For example, when facing a difficult decision, Baker advises asking yourself, “how would I handle this on Monday morning after four cups of coffee, when I’m most sharp?” It’s a good way to check yourself and make sure you’re not cutting corners, he said.

Always, Baker said, maintain a clear understanding of what is law, what is policy and what is legal policy. “If you start dressing up legal policy as law, then they’re not going to want you in the room.”

Model Rules do not tell you what to do when your advice is not followed, or when you learn of new and critical intelligence after a decision has already been made, but a commitment to doing the right thing --  as well as a framework in which to identify the right thing -- will help you address these scenarios.

Baker said the rapid evolution and intensity of national security law can be tough to adjust to, and the growth and expansion of artificial intelligence will speed everything up. “If you think it’s hard to be a national security lawyer now, when you have incomplete facts and not enough time, you’re just warming up,” Baker said.  “You have to get comfortable with making decisions very rapidly.”

He advises thinking about personal role models for inspiration when faced with an ethical problem, adding that he often imagines how Nelson Mandela might respond to a challenge.

“The goal of the national security lawyer is to get to ‘yes’ with honor, leaving the nation well taken care of and the Constitution intact,” he said.