I [expletive omitted] shot Bin Laden! Robert Allen Riggle Jr., 26 May 20111
On 2 May 2011, the President of the United States of America announced that a military operation killed Osama Bin Laden.2 At the President’s direction, “the United States launched a targeted operation against [a] compound in Abbottabad, Pakistan,” in which “a small team of Americans carried out the operation with extraordinary courage and capability.”3 The President went on to praise the “tireless and heroic work of our military and our counterterrorism experts.”4 This event highlighted the critically important work of the national security workforce. The President’s remarks also allude to the stressful conditions facing the national security workforce.
National security work occurs in dynamic and regulated environments populated by some of the nation’s oldest, largest, and most developed bureaucracies. National security work supports military operations, informs foreign relations, attempts to thwart terrorist attacks, and counters political and economic espionage. National security practitioners often work in isolated and stressful environments.5 Cultivating creativity and diversity can increase the collective efficacy and welfare of the national security workforce.6 This article surveys the scope of the national security law workforce, highlights the demanding legal environment in which national security law operates, and provides recommendations to strengthen the national security law workforce.
The Scope of National Security, National Security Law, and the National Security Law Workforce
We gotta stop CIA from stealing the credit on this . . . and if al Qaeda really is plotting something, we should stop that too.- Carly Ambrose7
Defining “national security” is no small feat, but a baseline understanding is necessary for this discussion.8 The U.S. Constitution, laws passed by Congress, dictionaries, and academics offer input toward a definition. The Preamble to the U.S. Constitution sets forth ideals related to national security such as to “insure domestic Tranquility . . . provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty.”9 The Constitution also contemplates providing for the military, the authority to declare war and engage in foreign relations, and the power to tax to “provide for the common defense.”10
The Espionage Act of 1917 prohibits the improper handling of “information relating to the national defense.”11 As an appellate court noted in 2018, “[t]he phrase ‘information relating to the national defense’ is not defined” in the Espionage Act.12 The court went on to note, “[n]onetheless, courts have held that ‘national defense’ had acquired a well-known meaning ‘as a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.’”13
Merriam-Webster does not have a definition for “national security,” but its definition for “security” includes “freedom from danger . . . [or] anxiety.”14 The Department of Defense Dictionary defines “national security” by noting that it includes “both national defense and foreign relations” and a “defense posture capable of successfully resisting hostile or destructive action from within or without.”15
Turning to national security law, academia has concluded it is a broad and multidisciplinary body of law. One scholar explained, “[t]here is not a single legal academy, practitioner, or public definition of ‘national security law.’”16 In 2007, a review of national security law textbooks revealed, “the subject matter encompasses everything from constitutional distribution of war powers to international human rights.”17 Another scholar noted, “The objective here is not to agree on a particular definition, but rather, in sampling definitions, to expose four points: (1) multiplicity of subjects, (2) integration of disciplines, (3) breadth of courses, and (4) fluidity of the national security field.”18
This final concept will be the foundation for discussion on the national security law workforce, which is a subset of the national security workforce. It includes administrative professionals, paralegals, and attorneys.19 It also includes national security practitioners such as analysts, agents, case officers, and operators from law enforcement, military, and intelligence agencies.20 Finally, it includes academics and members of the private sector.
National Security Law Is . . .
Carly: There’s a terrorist plot so we need to—
Fenton: Carly, there’s always a terrorist plot, if there wasn’t, we wouldn’t have a National Counterterrorism Center.21
When it comes to the practice of law, national security is exceptional, multidisciplinary, sometimes non-adversarial, and on the cutting edge. National security law combines traditional areas of law (criminal justice, contracts, and torts), developing or emerging areas of law (cyber and space law), innovative technologies (artificial intelligence, deep fakes, and autonomous warfare), and some of humanity’s oldest problems (warfare and international relations).22
. . . Exceptional
In numerous cases, courts have not addressed questions of national security in their analysis of larger constitutional issues, making national security cases exceptional. In Katz v. United States, the Supreme Court examined whether police needed a warrant to wiretap a public telephone booth.23 The Court noted, “[w]hether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.”24 The Court took a similar approach a few years later in United States v. United States District Court for the Eastern District of Michigan (The Keith Case), when it noted, “the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.”25 The Court again excepted national security in Carpenter v. United States, when it explained, “[o]ur decision today is a narrow one . . . Further, our opinion does not consider other collection techniques involving foreign affairs or national security.”26
One Congressional Research Service (CRS) report further highlighted the disparity between national security law and traditional criminal law when it noted law enforcement “tend(s) to give higher priority to tactical information (e.g., a tip that a specific cargo vessel is scheduled to off-load a shipment of cocaine at a specific dock in Miami on the night of August 4).”27 On the other hand, the intelligence community and national security apparatus have a different priority where, “the need for intelligence is more important than the need for dealing with a particular incident; thus, it may be advantageous to support a covert intelligence source for years (even if the source is publicly identified as anti-American or involved in illegal activities).”28 These decisions and the subsequent CRS report highlight the exceptional nature of national security law. Which in turn reveals an added level of complexity for the national security law workforce.
. . . Multidisciplinary
Common criminal law and civil laws often entangle with intelligence law, the law of armed conflict, and foreign relations law during the course of litigation. For example, the Supreme Court addressed whether the government could control information during civil litigation in 1875.29 In Totten v. United States, the Court considered whether a spy—allegedly employed by President Abraham Lincoln during the Civil War—could sustain a claim against the President for secret services rendered during the war.30 In determining the plaintiff could not sustain a claim against the President, the Court noted, “public policy forbids the maintenance of any suit . . . the trial of which would inevitably lead to disclosure of matters which the law itself regards as confidential” and, “greater reason exists for the application of the principle to cases of contract for secret services with the government, as the existence of a contract of that kind is itself a fact not to be disclosed.”31 This is known as the Totten bar.32
The Supreme Court later found an executive privilege in United States v. Reynolds.33 The widows of three civilians sued the United States after their spouses died when an Air Force aircraft, which was testing secret electronic equipment, crashed.34 The district court ordered the government to produce certain materials and the government declined, claiming the information was privileged.35 The district court entered a finding of liability, which the court of appeals later upheld.36 In reversing and remanding, the Supreme Court examined the history of the executive privilege that “protects military and state secrets.”37 The Court then set forth a detailed test noting the privilege belongs to the government and “the head of the department which has control over the matter” must personally and formally assert the privilege.38 The Court added the privilege was subject to judicial review, but the information was not subject to mandatory disclosure.39 This is known as the Reynolds privilege.40 Both the Totten bar and Reynolds privilege can end litigation—including in cases where the government is not a party—creating situations in which the national security law workforce struggle to make critical decisions of whether to assert a privilege that could prevent a litigant from having all or part of their day in court.
. . . Non-Adversarial
Intelligence law, a subset of national security law, can also depart from the adversarial practice common in other areas of law. The adversarial nature of criminal justice is a safeguard against abuse, but in non-adversarial situations, a different safeguard is used—oversight. For example, the oversight regime in the Foreign Intelligence Surveillance Act (FISA) includes all three branches of government.41 Congress established the Foreign Intelligence Surveillance Court (FISC) and Foreign Intelligence Surveillance Court of Review (FISCR).42 Congress added personal accountability of executive branch officials.43 The form of requesting certain authorities under FISA include features such as the application of a federal officer, certification of certain purposes by a senior executive branch official, and approval of the Attorney General (as defined in the statute) prior to filing.44 Another oversight mechanism includes reporting requirements to Congress or the public.45 Whereas an adversarial process allows for two (or more) parties to fully consider and advocate for their side of an issue, these oversight regimes require something different—they require the national security law workforce to essentially advocate for both sides, imposing an additional (ethical) burden not found in other areas of the law.46
. . . Cutting Edge
New technology sometimes complicates existing national security law. Consider deep fakes, the technology for “altering images, video, or audio (or even creating them from scratch).”47 As Professors Robert Chesney and Danielle Keats Citron point out in Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, this technology would permit “a disturbing array of malicious uses” which could include “interposing the faces of celebrities into sex videos,” but “will migrate far beyond the porn context, with great potential for harm.”48 Professors Chesney and Citron discuss the threat to national security this could pose, including the effects of such videos on elections, combat operations, foreign relations, or the democratic process.49 This technology could affect the national security law workforce by influencing inputs into their work (as discussed above), but a hostile actor could also use it to create additional opportunities to exert coercive influence against individual national security practitioners.
Another example of how national security law is on the cutting edge is how it keeps pace with the rapidly changing cyber landscape. Developments in computer and internet technology led to a collaborative attempt by international law experts to articulate the international law related to cyber warfare in 2013 (the “Tallin Manual”).50 Cyber technology (and law) moved so quickly that they repeated the effort just four years later, resulting in a second version of the manual (“Tallin Manual 2.0”).51 Two similar efforts are underway to examine the international law related to military space operations.52 These efforts underscore the dynamic nature of national security law. The national security law workforce should strive to be included in these conversations, along with academic and international experts.
Business schools and private industry spend countless hours and dollars in studying organizational behavior, but the body of research on the national security law workforce appears less prolific.53 Research has shown that having too many choices can impede performance, so the goal of this article is to identify two recommendations and suggest avenues for additional research.54
In his second annual message to Congress, President Abraham Lincoln said:
The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty. As our case is new, so we must think anew and act anew. We must disenthrall ourselves and then we shall save our country.55
Even at such a fraught time, President Lincoln appreciated the value of creativity. James Baker echoed the importance of creativity in claiming, “[i]f we do prevent a catastrophic attack, it will be through effective, hard, and creative use of national security tools—intelligence, the military, law enforcement, and diplomacy.”56 In an environment with strict timelines, robust processes, and the urgency of national security, it can be tempting to default to the comfort of known repetitive bureaucratic processes. After all, some types of success stem from, “becoming an expert in a niche and performing a set of behaviors repeatedly.”57 However, as the CEO of JPMorgan Chase put it, bureaucracy is “a disease.”58 According to Sir Ken Robinson, an expert in education and innovation, although “[c]reativity is sometimes associated with free expression . . . creativity is also about working in a highly focused way on ideas and projects, crafting them in their best forms and making critical judgments.”59
Making room for creativity may not be a large government organization’s strength, but it can be done. Methods include exercises such as encouraging individualism within teamwork, using acting exercises such as in improvisation classes, or establishing diversity (discussed more below).60 Other methods include avoiding micromanagement, encouraging experimentation, underwriting failure (when able), and moving from strict order toward a little more chaos (within reason).61
Diversity supports problem solving, innovation, and resilience. In fact, it is “critical for an organization’s ability to innovate and adapt in a fast-changing environment.”62 A positive link has been shown between organizational diversity and resilience.63 A study of organizational problem solving determined a “high degree of cognitive diversity could generate accelerated learning and performance in the face of new, uncertain, and complex situations.”64 The study defined cognitive diversity as, “differences in perspective or information processing styles . . . not predicted by factors such as gender, ethnicity, or age.”65 A subsequent study added, “groups that performed well treated mistakes with curiosity and shared responsibility for the outcomes,” which created “psychological safety,” for the members.66
There are myriad ways for an organization within the national security law workforce to achieve the desired diversity outside of hiring practices. Organizations can offer fellowships or details where employees work at other, related organizations for a term (such as a military officer performing a detail at another executive branch agency or private corporation).67 Other options might include attending continuing legal education programs offered by the military law schools, or conferences and workshops with the private sector or academia.68
The stressors placed on the national security law workforce are immense.69 Taking care of each member of the workforce is vital, as is promoting the welfare of the collective organizations. Adding creativity to the process in a controlled fashion should allow the national security law workforce to find increasingly effective ways to solve problems. Encouraging diversity (such as cognitive diversity discussed above) should stimulate innovation and likewise build a more efficient and resilient workforce. These are only two recommendations to stimulate innovation, efficiency, and resilience in the national security law workforce. National security organizations should be open to trying something new, studying processes within their own and other organizations, and continue to grow for the security of our nation. TAL
1. Funny Or Die, The Navy Seal Who Killed Osama Bin Laden, YouTube (May 26, 2011), https://www.youtube.com/watch?v=zv9AUFpRGyc.
2. Barack H. Obama, U.S. Pres., Remarks by the President on Osama Bin Laden (May 2, 2011).
5. Alan Wehbé, The Mental Health of our National Security: Protecting the Minds That Protect the Homeland, 7 Am. U. Nat’l Sec. L. Brief 83, 86–87 (2017) (describing and defining the term “national security practitioner”).
6. This article focuses on the collective welfare of the national security law workforce. The welfare of each individual member of this workforce is also critical. See generally, Wehbé, supra note 5.
7. Liberty Crossing TV (@libertyXingTV), Twitter (Feb. 28, 2018, 6:05 PM), https://twitter.com/libertyXingTV/status/969030723125612544.
8. See, e.g., Robert M. Chesney, National Security Fact Deference, 95 Va. L. Rev. 1361, 1402 (2009) (discussing “Definitional Objections to ‘National Security’” in various legal contexts, including litigation); Laura K. Donohue, The Limits of National Security, 48 Am. Crim. L. Rev. 1573, 1577–1587 (2011) (attempting to define “U.S. National Security,” and proposing a functional definition); Youssef Sneifer, The Implications of National Security Safeguards on the Commercialization of Remote Sensing Imagery, 19 Seattle U. L. Rev. 539, 563 (1996) (“Because of the political nature of the term ‘National Security,’ its definition and scope vary with the changing policies of the administration in power.’); Christopher M. Tipler, Defining ‘National Security’: Resolving Ambiguity in the CFIUS Regulations, 35 U. Pa. J. Int’l L. 1223, 1223–1225 (2014) (discussing the lack of definition of “national security” in the law and executive statements surrounding the Committee on Foreign Investment in the United States).
9. U.S. Const. pmbl.
10. U.S. Const. The delineation of these powers also leads to fertile discussion about separation of powers, which is beyond the scope of this article. See generally, Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579 (1952) (examining executive action in claimed national security emergency); Robert J. Reinstein, The Limits of Executive Power, 59 Am. U. L. Rev. 259 (2009) (discussing general limitations of executive power).
11. The Espionage Act of 1917, Pub. L. 65-24, 40 Stat. 217 (1917) (codified as amended at 18 U.S.C. §§ 793–94 (2018)).
12. United States v. Manning, 78 M.J. 501, 513-514 (A. Ct. Crim. App. 2018) (citing United States v. Rosen, 445 F. Supp. 2d 602, 619 (E.D. Va. 2006) (internal citations omitted)).
14. Security, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/security (last visited Nov. 23, 2018).
15. U.S. Dep’t of Def., Dictionary of Military and Associated Terms 162 (Sept. 2018).
16. Lisa L. Turner, Developing Client-Ready Practitioners: Learning How to Practice National Security Law at Military Law Schools, 7 J. Nat’l Security L. & Pol’y 1, 1 n. 3 (2014).
17. Tung Yin, Introduction to National Security Law, 7 J. Nat’l Security L. & Pol’y 1, 1 (2007).
18. James E. Baker, Process, Practice, and Principle: Teaching National Security Law and the Knowledge that Matters Most, 27 Geo. J. Legal Ethics 163 (2014).
19. Wehbé, supra note 5, at 86–87 (offering a definition of “national security practitioner”).
21. Liberty Crossing TV (@libertyXingTV), Twitter (Feb. 28, 2018, 6:05 PM), https://twitter.com/libertyXingTV/status/969030723125612544.
22. See, e.g., Christopher v. Harbury, 536 U.S. 403 (2002) (a tort claim against national security officials); Ex parte Quirin, 317 U.S. 1 (1942) (upholding trial of suspected war-time spies by military tribunal); U.S. v. Curtiss-Wright Export Corporation, et al., 299 U.S. 304 (1936) (“President as the sole organ of the federal government in the field of international relations”); The Paquete Habana, 175 U.S. 677 (1900) (fishing vessels engaged in coastal fishing “ripened into ‘an established rule of international law’” as exempt from seizure as prizes of war); Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981) (litigation of a Freedom of Information Act request for information related to a Central Intelligence Agency contract); Keehn v. United States, 110 Fed. Cl. 306 (Fed. Cl. 2013) (claim against the government for compensation related to intellectual property); Robert Chesney & Danielle Keats Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 Cal. L. Rev. (forthcoming 2019) (discussing legal and policy implications of deep fake technology); Rebecca Crootof, War Torts: Accountability for Autonomous Weapons, 164 U. Pa. L. Rev. 1347 (2016) (discussing development of international law related to accountability of use of autonomous weapons); Melissa Reneaa Pegna, U.S. Arctic Policy: The Need to Ratify a Modified UNCLOS and Secure a Military Presence in the Arctic, 44 J. Mar. L. & Com. 169 (2013) (discussing United Nations Convention on the Law of the Sea and U.S. military policy).
23. 389 U.S. 347 (1967).
24. Id. at n.23.
25. 407 U.S. 297, 308 (1972).
26. 138 S. Ct. 2206, 2220 (2018).
27. Richard A. Best, Jr., Intelligence and Law Enforcement: Countering Transnational Threats to the U.S., 15 (Congressional Research Service ed., 2001).
29. Totten v. United States, 92 U.S. 105 (1875); Jason A. Crook, From the Civil War to the War on Terror: The Evolution and Application of the State Secrets Privilege, 72 Alb. L. Rev. 57, 58 (2009).
30. 92 U.S. 105, 105 (1875).
31. Id. at 106.
33. 345 U.S. 1 (1953).
34. 345 U.S. at 2–3 (1953).
35. Id. at 4–6.
37. Id. at 7.
38. Id. at 8.
41. Foreign Intelligence Surveillance Act of 1978, Pub. L. 95-511, 92 Stat. 1783 (1978) (codified as amended at 50 U.S.C. §§ 1801–1885c).
42. Id. § 1803.
43. Id. §§ 1804, 1805, 1824, & 1881c.
45. Id. §§ 1802, 1807, 1808, 1826, 1862, & 1864.
46. This is likely oversimplified. For example, congress added a provision to FISA allowing for the FISC to utilize amici. Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline over Monitoring Act of 2015, Pub. L. No. 114-23, § 401, 129 Stat. 268, 279 (2015) (codified as amended at 50 U.S.C. § 1803(i)).
47. Chesney & Citron, supra note 22.
48. Id. at 4–5.
50. NATO Cooperative Cyber Defence Centre of Excellence, Tallin Manual on the International Law Applicable to Cyber Warfare (Michael N. Schmitt, et al. eds., 2013).
51. NATO Cooperative Cyber Defence Centre of Excellence, Tallin Manual 2.0 on the International Law Applicable to Cyber Warfare, (Michael N. Schmitt, et al. eds., 2017) ; see also NATO Cooperative Cyber Defence Centre of Excellence, Tallin Manual: Research, https://ccdcoe.org/research.html (last visited on Nov. 24, 2018).
52. The University of Adelaide: The Woomera Manual, https://law.adelaide.edu.au/woomera/home (last visited on Nov. 24, 2018); McGill University: Manual on International Law Applicable to Military Uses of Outer Space, https://www.mcgill.ca/milamos/ (last visited on Nov. 24, 2018).
53. See, e.g., Martin Parker, Why We Should Bulldoze the Business School, The Guardian: The Long Read (Apr. 27, 2018), https://www.theguardian.com/news/2018/apr/27/bulldoze-the-business-school; but cf. Navy Warfare Development Command, Navy Lessons Learned Information System Upgraded (Sept. 16, 2013), https://www.navy.mil/submit/display.asp?story_id=76611; United States Army Combined Arms Center, Center for Army Lessons Learned, https://usacac.army.mil/organizations/mccoe/call/ (last visited Nov. 25, 2018).
54. See generally, Louise Lee, Research: Too Many Choices Can Derail Success, Stanford Graduate School of Business: Insights by Stanford Business (Nov. 26, 2013), https://www.gsb.stanford.edu/insights/research-too-many-choices-can-derail-success.
55. Abraham Lincoln, U.S. Pres., Second Annual Address to Congress (Dec. 1, 1862), in The American Presidency Project, U.C. – Santa Barbara, https://www.presidency.ucsb.edu/documents/second-annual-message-9.
56. James E. Baker, In the Common Defense loc. 793 (Cambridge U. Press 2007).
57. Alice Boyes, 5 Ways Smart People Sabotage Their Success, Harvard Business Review (Nov. 13, 2018), https://hbr.org/2018/11/5-ways-smart-people-sabotage-their-success.
58. Gary Hamel & Michele Zanini, The End of Bureaucracy, Harvard Business Review (Nov-Dec 2018), https://hbr.org/2018/11/the-end-of-bureaucracy.
59. Ken Robinson, Out of our Minds: Learning to be Creative, loc. 389 (Capstone Publishing 2001).
60. See generally, Alan Alda, If I Understood You, Would I Have This Look on My Face? (Random House 2017); Alison A. Quirk, Fostering a Culture of Creativity in the Workplace, Huffington Post (June 18, 2015), https://www.huffingtonpost.com/alison-a-quirk/fostering-a-culture-of-cr_b_7615498.html; Forbes Coaches Council, 15 Ways Leaders Can Promote Creativity in the Workplace, Forbes (Dec. 21, 2017) https://www.forbes.com/sites/forbescoachescouncil/2017/12/21/15-ways-leaders-can-promote-creativity-in-the-workplace/#663730f258ef.
61. See 15 Ways Leaders Can Promote Creativity in the Workplace, supra note 53 (explaining: “Imagine a continuum with control and chaos anchoring the ends. A leader who wants to increase creativity should rate self and use behaviors to describe current rating and ones to move incrementally toward chaos. A system is at its most creative on the ‘cusp of chaos’ because all ideas will be considered. No leader wants to go all the way to the cusp, the goal is to move slightly beyond comfort”).
62. Ekaterina Walter, Reaping the Benefits of Diversity for Modern Business Innovation, Forbes (Jan. 14, 2014), https://www.forbes.com/sites/ekaterinawalter/2014/01/14/reaping-the-benefits-of-diversity-for-modern-business-innovation/#42f027d52a8f.
63. See generally Patrick Reinmoeller & Nicole van Baardwijk, The Link Between Diversity and Resilience, MITSloan Management Review (July 15, 2005), https://sloanreview.mit.edu/article/the-link-between-diversity-and-resilience/; Cally Jordan & Ankoor Jain, Diversity and Resilience: Lessons from the Financial Crisis, 32 U.N.S.W.L.J. 416 (2009).
64. Alison Reynolds & David Lewis, Teams Solve Problems Faster When They’re More Cognitively Diverse, Harvard Bus. Rev. (Mar. 30, 2017), https://hbr.org/2017/03/teams-solve-problems-faster-when-theyre-more-cognitively-diverse.
66. Alison Reynolds & David Lewis, The Two Traits of the Best Problem-Solving Teams, Harvard Bus. Rev. (Apr. 2, 2018), https://hbr.org/2018/04/the-two-traits-of-the-best-problem-solving-teams.
67. See e.g., RAND Army Research Division, Army Fellowship Program, https://www.rand.org/ard/fellows.html (last visited Nov. 24, 2018); Michelle Tan, FBI, CIA, NSA seek Army officers for fellowships: Apply Now, Fed. Times: HR (Dec. 17, 2015), https://www.federaltimes.com/management/hr/2015/12/17/fbi-cia-nsa-seek-army-officers-for-fellowships-apply-now/.
68. See, e.g., Robert Chesney, Announcing the 9th National Security Law Workshop, Lawfare (July 23, 2018), https://www.lawfareblog.com/announcing-9th-national-security-law-workshop; American Bar Association, National Security Law, Events & CLE, https://www.americanbar.org/groups/public_services/law_national_security/events_cle/ (last visited Nov. 24, 2018); Student Services, The Judge Advocate General’s Legal Center and School, https://tjaglcspublic.army.mil/studentservices (last visited Nov. 24, 2018); Naval Justice School Curriculum, U.S. Navy Judge Advocate General’s Corps, Naval Justice School, http://www.jag.navy.mil/njs_curriculum.htm (last visited Nov. 24, 2018).
69. See, e.g., Wehbé, supra note 5.