The United States government’s 1793 prosecution of Gideon Henfield represents the first instance of the lawfare engaged in by the fledgling government. Over the course of the decades that followed, criminal prosecution became a default selection for addressing national security threats. This article examines how the Washington Administration utilized law as a weapon to defend itself from the British and French and set the precedent for using prosecutions to achieve national security objectives.
Jennifer Marett investigates the little-known position of National Security Council Legal Advisor. Drawing on a wide range of historical material as well as interviews with several previous holders of the position, Marett traces its roles and responsibilities from inception through the current administration. She concludes by identifying several contemporary institutional challenges affecting this important intelligence community role.
The demand for trained and educated national security lawyers, including those in the military, is not going to lessen. The challenge is to meet the increasing demand with shrinking resources. The military services must first identify national security law as a core, mission-essential discipline. The services should integrate the joint and perhaps inter-agency legal community into the existing process for identifying and deconflicting legal education requirements. The services should also consider whether lawyers can learn certain aspects of national security law through civilian legal education and distance learning rather than brick-and-mortar military schoolhouses.