James E. Baker, a judge for the United States Court of Appeals for the Armed Forces and a prominent authority on national security law, spoke to Columbia Law School students and faculty members about the importance of moral integrity and accountability in national security law and decision-making.
As a guest speaker in the Roger Hertog Program on Law and National Security, co-directed by Professor Matthew Waxman, Baker talked about his experience working in the National Security Council and serving as a legal adviser to President Bill Clinton. In 2000, he was appointed by Clinton to the U.S. Court of Appeals for the Armed Forces, which is composed of five civilian judges. The Court has appellate jurisdiction over cases arising under the Uniform Code of Military Justice.
Baker focused on the issue of presidential war powers as well as the ethics of government lawyering and process of decision. Baker was involved in decision-making processes for military actions in Somalia, Haiti, Bosnia, Kosovo, Iraq, and to combat Al-Qaeda and other terrorist groups.
Students asked about Baker’s varied career experience, including his time as a Marine Corps infantry officer, an aide to Sen. Daniel Patrick Moynihan, a State Department and White House lawyer, and now as an appellate court judge. He recalled that Senator Moynihan pressed him to go to law school “So that if I ever felt like I was being asked to do something I thought was unlawful or immoral and could not otherwise resolve the situation, I could resign and I could provide for my family.” he said.
Baker shared with the class examples of “good” and “bad” process as well as making the point that lawyers should make the most of the time they have by preparing in advance and adapting process to circumstance. This he illustrated by describing a real but unnamed situation where he was given five minutes to answer a novel question of law that could gravely affect lives. He then provided a step-by-step account of how he used each of those five minutes to try to reach the best advice.
Baker is the author of a widely used national security law text, In the Common Defense: National Security Law for Perilous Times, which Waxman uses in his seminar.
The Roger Hertog Program on Law and National Security focuses on the role of domestic law in national security matters from the perspective of both lawyers and policymakers. As part of the Hertog program, the Charles Fabrikant Colloquium on National Security Law and Policy addresses contemporary national security issues, such as civilian versus military trials for terrorism suspects, oversight of covert CIA activities, electronic surveillance and foreign intelligence collection, and presidential versus congressional control of the armed forces.
“The idea of this colloquium is to ground our study of national security law in real-world dilemmas facing government officials,” says Waxman. “Guests like Judge Baker are crucial to teaching not only about the substance of national security law but the processes in which it is used, and how national security law is actually practiced.”