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Career Note
Executive Counsel
A Deputy Legal Advisor’s Work at the NSC
By Colonel Peter R. Hayden
The judge advocate career model calls for continual professional development throughout the course of one’s service. This includes broadening assignments to develop the capability to see, work, learn, and contribute outside one’s own perspective or individual level of understanding for the betterment of both the individual and the institution.1 For the past year, I had the privilege to see, work, learn, and contribute in an environment vastly different from the unit and installation Office of the Staff Judge Advocate assignments in which judge advocates spend much of our time—as a Deputy Legal Advisor on the National Security Council (NSC) staff at the White House.
NSC Overview
The NSC is the President’s principal forum for considering national security and foreign policy matters with his senior national security advisors and cabinet officials. Its purpose is to provide advice and recommendations to the President so as to enable the armed forces and other departments and agencies of the U.S. Government to cooperate more effectively in matters involving the national security.2
For example, let’s assume that the President’s strategy for a certain region calls for building a strategic partnership with country X. The Department of State may propose a security and defense cooperation agreement involving arms transfers and joint exercises. The Defense Department and Joint Staff representatives may evaluate the proposal with regard to forces available and impact on the National Defense Strategy. The Treasury and Commerce Departments may advise that economic measures imposed against key individuals in country X may complicate implementation, such as sanctions or export license entity-listing. Thus, while the authority to take action may lie with one or more agency heads, NSC coordination enables all concerned agencies to identify the various policy factors at play, and recommend solutions to the collective agency heads and, if appropriate, to the President for review and approval.
By law, the NSC includes the President, Vice President, the Secretary of State, the Secretary of Defense, the Secretary of Energy, the Secretary of the Treasury, and such other officers of the U.S. Government as the President may designate.3 By presidential directive, several other executive agency heads and White House officials attend NSC meetings, including the National Security Advisor,4 White House Counsel,5 and Deputy Counsel to the President for National Security Affairs.6
The NSC has a full-time staff composed of agency detailees and direct-hire employees, and is led by political appointees. The staff serves both the NSC and the Homeland Security Council,7 and is divided into roughly twenty directorates covering regional and functional areas of concern, as well as administrative support (e.g., Legal, Executive Secretariat). The staff prepares policy options for the President through the National Security Advisor, and coordinates the activities of the executive departments and agencies in support of the President’s objectives. As part of the President’s immediate staff, the work of the NSC and its staff is confidential and not subject to the Freedom of Information Act.8
The NSC/Legal office is small—fewer than ten attorneys detailed to the NSC from executive agencies. It is led by two members of the White House Counsel’s Office, including the Deputy Counsel to the President for National Security Affairs. Thus, much like a Brigade Judge Advocate (BJA) or Trial Counsel (TC) reports to both the Staff Judge Advocate (SJA) and Commander, the detailed attorneys report to both the “technical chain” in the Counsel’s office and the National Security Advisor. Each detailee maintains a portfolio supporting three to five client directorates, though many issues cross over and all attorneys routinely cover for one another. For the past year, my portfolio included direct support to two regional and two functional directorates, as well as certain ad hoc issues such as the use of military force and assisting with ethics for the NSC staff. A typical day is spent attending meetings with policymakers, and reviewing and editing documents or talking points. On any given day, an NSC attorney routinely touches between fifteen to thirty different issues. As with all agency detailees to the NSC staff, the attorneys in NSC/Legal facilitate interagency coordination but do not function as liaison officers to their home agencies. Therefore, for the duration of the detail, the President is the sole client for purposes of professional responsibility obligations, executive privilege, etc.
Issues
Many legal issues confronting the NSC/Legal attorney would be familiar to judge advocates at some level. Over the course of the year, matters requiring attention at the NSC included ROE and other authorities for U.S. Forces in Afghanistan, use of force in Syria, the elevation of U.S. Cyber Command to a unified combatant command, general and flag officer nominations, and an executive order approving the 2018 Manual for Courts-Martial.
However, most legal issues before the NSC aren’t covered in The Judge Advocate General’s School curriculum. Topics such as an unmanned aerial system export policy, an agreement for peaceful nuclear cooperation with Mexico, and efforts to hold the Syrian regime accountable for violations of the Chemical Weapons Convention all fall well outside the Operational Law handbook. As with any new legal issue confronting a BJA or SJA, the key is to spot a potential issue and identify who within the U.S. Government has the expertise to quickly analyze and, if necessary, resolve it. The agency legal offices are filled with staggeringly talented and professional experts. Building relationships with a wider network of attorneys by solving tough problems together is one of the most rewarding aspects of any broadening assignment.
Decision-making Processes
The NSC also employs a number of processes for coordinating information and recommendations, and preparing senior leaders to make decisions. National Security Presidential Memorandum – 4 describes the formal coordination structure for the NSC, consisting of the three main policy coordination bodies.9 A Policy Coordination Committee (PCC) is a subject-specific forum to consider policy matters at the Assistant Secretary level, led by an NSC staff director. When the PCC has vetted a proposed option and is ready to recommend it for approval by either a Cabinet official or the President, the PCC will prepare a discussion paper and forward the matter to the National Security Advisor who will chair either a Deputies Committee (DC) composed of agency Deputy Secretaries (or equivalents), and/or, if appropriate, a Principals Committee (PC) composed of the agency heads. The DC and PC may approve the proposal, disapprove it, or return it to the PCC for refinement.
The NSC process also accommodates less formal mechanisms to work out detailed issues and develop information. For example, attorneys from interested agencies will often confer under the leadership of the Deputy Counsel to the President for National Security Affairs, or his designee, to ensure that significant policy proposals are thoroughly reviewed or to address novel questions of law. Participating agencies’ counsel will vary from issue to issue, and usually include attorneys from the Department of Justice’s Office of Legal Counsel. Participating counsel may simply agree to brief their respective Principals on the results of the discussion, or prepare one or more papers to advise the PC or DC. In appropriate cases, an agency may produce a formal opinion, as in the case of the May 2018 Justice Department opinion on the airstrikes against Syrian chemical weapons facilities.10
As with any broadening assignment, the key takeaways include an understanding of what’s important to the leadership of other organizations and how they make decisions—in this case, both the executive branch as a whole and, to a degree, other federal departments and agencies. This insight includes not only the formal and informal NSC processes discussed above, but also the minutiae of communication and staffing for senior civilian executives: how to prepare a discussion paper, talking points, memoranda, policy rollout strategies, read-ahead packages, press points, etc. A broadening assignment will likely involve learning new law, but more importantly, one will observe how other attorneys practice law effectively in support of senior government officials. It also provides an opportunity to convey the professionalism and skill of the Army JAG Corps to the broader legal community while building relationships which enrich and enhance one’s service as a judge advocate. In the end, broadening assignments help both the Corps and the individual judge advocate as they provide new perspectives on how to lead, practice law, and engage with outside agencies throughout one’s career. TAL
COL Hayden is currently a student at the National War College in Washington, D.C.
Notes
1. JALS Pub. 1-1, Personnel Policies (1 May 2018); Dep’t of the Army, Pam. 600-3, Commissioned Office Professional Development and Career Management para. 3-4f (26 June 2017).
2. 50 U.S.C. § 3021(b).
3. 50 U.S.C. § 3021(c).
4. Formal title: Assistant to the President for National Security Affairs.
5. Formal title: Assistant to the President and Counsel to the President.
6. Formal title: Deputy Assistant to the President, Deputy Counsel to the President for National Security Affairs, and Legal Advisor to the National Security Council. In National Security Presidential Memorandum – 4, Organization of the National Security Council, the Homeland Security Council, and Subcommittees (April 4, 2017) [hereinafter “NSPM-4”], the President directed that the NSC shall also routinely include the Attorney General, Secretary of Homeland Security, Assistant to the President for National Security Affairs (National Security Advisor), and the Representative of the United States to the United Nations. The Director of National Intelligence and the Chairman of the Joint Chiefs of Staff, as statutory advisors to the NSC, are also regular attendees, as is the Director of the Central Intelligence Agency. The Assistant to the President and Chief of Staff (Chief of Staff to the President), the Counsel to the President, the Deputy Counsel to the President for National Security Affairs, and the Director of the Office of Management and Budget are invited as attendees to any NSC meeting. Other officials may be invited at the President’s direction when relevant issues are on the agenda.
7. Created by Exec. Order No. 13,228, Establishing the Office of Homeland Security and the Homeland Security Council, 66 Fed. Reg. 51,812 (Oct. 8, 2001).
8. See Main Street Legal Services, Inc. v. National Security Council, 811 F.3d 542 (2d Cir., 2016); Armstrong v. Executive Office of the President, 90 F.3d 553 (D.C. Cir., 1996).
9. NSPM–4, supra note 6.
10. April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities, 42 O.L.C. ___ (May 31, 2018), https://www.justice.gov/olc/opinion/file/1067551/download.