Members of SOCKOR and the Republic of Korea Special Warfare Command attending the 2021 International Symposium on Security and Military Law, in Seoul, Korea From left: Petty Officer First Class Neil Eller, Major Mijeong Lee, Mr. Justin Malzac. (Photo courtesy of the author)
Closing Argument
The National Security Law Paralegal
By Justin Malzac
If the law were black and white, there would be no need for
lawyers.
It is in those grey areas, between the seams, where national security
law (NSL) professionals find their value. What I have found as an NSL
paralegal is that those things I enjoy doing most—researching, compiling
references, drafting legal arguments—are the exact things my attorneys
need from me. I have no desire to litigate the issue in front of the
command. My drive is always toward finding the answers.
I have served both as a uniformed member and Army civilian, and I find
both positions to have many of the same duties and expectations. To
perform well in the field of NSL, a legal professional must be
comfortable with the Military Decision-Making Process (MDMP), able to
receive and interpret their commander’s intent, and familiar with the
applicable law and how to find it. Unfortunately, you are not going to
get the latter from the Noncommissioned Officer Professional Development
System or Civilian Education System, which focus primarily on Army
doctrine, culture, and general leadership.
National security law paralegals can support attorneys by equipping them
with the information they need to render accurate and relevant legal
opinions. National security law offices are often small compared to
other legal sections. This means every member carries more weight, and,
as a result, more responsibility. By conducting research and offering
possible approaches to a legal question, paralegals can give much needed
time back to attorneys they can use to fine tune and present their legal
opinions. And it is always an advantage to have additional well-informed
voices involved in office discussions.
However, being a meaningful part of that discussion requires having a
strong foundation in an ever-expanding field of law. If the recent
conflict in Ukraine has shown us anything, it is that conventional wars
are not an artifact of some lost and bygone era. The Hague Regulations
are just as relevant today as they were 100 years ago.1
At the same time, the modern world continually presents novel and
complex issues of law. Today, these include cyber and information
operations, artificial intelligence, and autonomous weapons. As many
eminent experts of the field have noted,2
NSL professionals cannot fully support their operations staff without a
general knowledge of technical matters. For example, in order to apply
the law to cyber operations, you will first need a basic understanding
of how computers and networks operate. There is no room for Luddites in
this field.
Paralegals must take it upon themselves to study the wide range of
issues comprising NSL, from the Law of Armed Conflict to international
law, maritime law, intelligence law, or operations law. They must also
develop their legal research skills largely on their own. There are
courses available to take and books to read, but it is also important
for NSL attorneys to mentor and support this self-development.
When I started as a paralegal, I knew I had a lot to learn, especially
for my rather peculiar duty position. I listened to the
National Security Law Podcast3during my morning commute, read articles on Lawfare4 during downtime in the office, and found other ways to expand my understanding of the law. At first, I focused on the topics most relevant to my unit’s mission. Once I became comfortable with the basics of NSL, I expanded my studies to the topics that interested me personally—such as the overlap of information operations and international law.5 I also completed a certificate program in legal researching and writing. All of this self-development has made me a better asset to my attorneys.
There are many NSL positions available to active duty Army paralegals across the globe. Many of these are in the special operations community, or at the three- or four-star command level. Thus, most of these positions are billeted for mid to senior NCOs, but that doesn’t mean junior Soldiers cannot begin taking steps towards a future goal of becoming a senior NSL NCO. To this end, the JAG Corps has created the NSL Personnel Development Skill Identifier (PDSI) to provide a career track of sorts for NSL paralegals. For the reserve paralegal, many of the most significant NSL positions fall under the IMA (Individual Mobilized Augmentee) program.
In order to succeed in these positions—especially as an IMA—a paralegal must be self-reliant, eager to learn, and resilient. They also need to be creative thinkers, able to “cope” with situations where guidance may be ambiguous or lacking.6 These are not necessarily skills that can be learned, but nascent ones can be further developed. Again, proper mentorship is key.
The advantage of working in NSL is that you find yourself dealing with the most novel and interesting legal questions. What are the rules for maritime intelligence collection? Who has the authority to deploy counterterrorism forces on a potentially lethal raid? What changes if it is only an “advise and assist” mission? You also have a greater effect on regional—and sometimes even national—strategy and policy. But sometimes it’s just fun to be able to say that you’re friends with a bunch of SEALs. TAL
Mr. Malzac is the senior paralegal for a DOD joint component command.
Notes
1. See generally Convention (IV) Respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277. This is especially true when considering the United States has not ratified Additional Protocol I to the Geneva Conventions. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3.
2. See, e.g., James E. Baker, The
Centaur’s Dilemma: National Security Law for the Coming AI
Revolution
(2020).
3. Nat’l Sec. L. Podcast, https://www.nationalsecuritylawpodcast.com/ (last visited Apr. 29, 2022).
4. Lawfare, https://www.lawfareblog.com/ (last visited Apr. 29, 2022).
5. See, e.g, Justin Malzac, Expanding Lawful Influence Operations, Harv. Nat’l Sec. J. Online (April 12, 2022), https://harvardnsj.org/wp-content/uploads/sites/13/2022/04/Malzac-Influence-Operations.pdf (last visited Aug. 25, 2022).
6. James E. Baker, Process, Practice, and Principle: Teaching National Security Law and
the Knowledge that Matters Most, 27
Geo. J. Legal Ethics 163, 179–180 (2014).