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.
This article challenges the dominant pedagogical assumptions in the legal academy. It begins by briefly considering the state of the field of national security law, noting the rapid expansion in employment and the breadth of related positions that have been created post-9/11. It considers, in the process, how the legal academy has, as an institutional matter, responded to the demand. The article then proposes a new model for national security legal education, based on innovations currently underway at Georgetown Law. It points to a new model of legal education that advances students in their pedagogical goals, while complementing, rather than supplanting, the critical intellectual discourse that underlies the value of higher legal education.
Professor Wasserman offers several evaluations of the Supreme Court’s 1872 decision in Klein. In places he states that it was issued in a “pathological period,” is confusing to read, and therefore difficult to apply. Yet elsewhere in his article he finds the decision to be understandable and recognizes that it offers several clear separation of powers principles. Between those two competing and conflicting positions, the latter analysis is on firmer ground. His article focuses on two recent national security issues – the 2008 statute granting immunity to telecoms that provided assistance to NSA surveillance, and the Military Commissions Act (MCA) of 2006 – to determine whether they are consistent with and controlled by Klein.
Professor Wasserman describes Klein as the product of what Vincent Blasi “has called a period of constitutional pathology, a period reflecting ‘an unusually serious challenge to one or more of the central norms of the constitutional regime.’” Pathological periods, Blasi says, are marked by a “sense of urgency stemming from societal disorientation if not panic.” They come at a time of “a shift in basic attitudes, among certain influential actors if not the public at large,” concerned with what Wasserman calls “central constitutional commitments.” Panic can affect structural features, including formal and informal separation of powers and checks and balances, which may “exert much less of a restraining influence” on the political branches and the public.” Rigorous judicial review “must be reserved for extreme cases challenging pathological laws and action . . . as a bulwark against overreaching officials and citizens.”
Klein arose, Wasserman points out, “in a previous pathological period –Reconstruction.” That is true, but what does that say about the clarity of the decision and subsequent ability to apply it with confidence? Good things and bad things come out of periods of stress and panic. The“pathological” period after the Civil War yielded three constitutional amendments: the Thirteenth (abolishing slavery), the Fourteenth (establishing new rights), and the Fifteenth (extending the right to vote). Those years opened up new professional opportunities for women. Some branches of government may perform well, others poorly. The requirement each time is to analyze a particular case or action to determine how well a political institution carries out its constitutional duties. In considering Klein in the context of the politics of 1872, the Court was clearly under stress but issued a decision that pushed back against indefensible legislation and did so in a manner that gave clear and valued guidance to future legislation and litigation.