Bring the Noise

Columbia Law School is training the next generation of national security lawyers during an era marked by hyper-surveillance, drone warfare, cyber-sabotage, shifting alliances, constitutional quandaries, and enemies unrestrained by national borders. The stakes could not be higher.

By Elise Jordan

Spring 2012

This past autumn, halfway around the world, a 40-year-old American died in a remote area of the Yemen desert, his life extinguished in one violent instant. The death, like thousands of others in the war on terror, was brutal and swift. But it was unlike most Middle East combat casualties in one important way: The dead man, Anwar al-Awlaki, had been killed by his own government, on purpose.

Al-Awlaki, who was struck down in a CIA-executed drone attack authorized from the White House, was born in New Mexico and had lived in Virginia prior to leaving in 2004 for Yemen, where the U.S. government said he served as a top al-Qaeda operative. The government released no evidence of al-Awlaki’s misdeeds before targeting him. Prior to the killing, al-Awlaki’s father, Nasser, filed suit in federal court requesting an explanation from the Obama administration as to why his son was on a list of men targeted for death. That court ruled against Nasser al-Awlaki, and 10 months later his son was blown to pieces by a Hellfire missile. He was nowhere near an active battlefield. And he was not alone—three others died with him.

As American politicians rejoiced and human rights activists protested, Columbia Law School Professor Matthew Waxman responded to the news in a markedly different way. He used the circumstances surrounding al-Awlaki’s death as a broad, complex case study during his National Security Law course sessions. Waxman, a former top aide to Secretary of State Condoleezza Rice and former deputy assistant secretary for detainee affairs at the Pentagon, is one of several national security experts to join the Law School during the past four years. He helps lead the recently launched Roger Hertog Program on Law and National Security.

The al-Awlaki case, Waxman says, merits close examination. “You can find in this one issue—drone targeting, especially the drone-targeted killing of a U.S. citizen—most of the major national security law debates,” he notes. Specifically, the killing raises fundamental questions about presidential power and the scope of civil liberties protections. In the classroom, Waxman and his students discussed what laws gave the U.S. government the authority to take al-Awlaki’s life, as well as the legal justifications for intelligence collection, covert action, and extrajudicial killings.

“[We focused on] how and why we give so much deference to the executive branch in light of the liberties at stake,” says second-year student Colleen Garcia ’13 of Waxman’s class discussions centered on al-Awlaki. “The class is more than just understanding the issues the government deals with. It makes you think like a government lawyer.” 

 

While the details underlying the al-Awlaki killing were unique, the conversation and analysis that occurred at Columbia Law School in the wake of the operation were not. In the years since the 9/11 attacks redefined the intersection of domestic law and national security, Columbia Law School has recruited a broad range of faculty specializing in the field and launched the one-of-a-kind Hertog Program, which keeps pace with national security law developments through teaching, research, and access to leading practitioners. The program is unique in drawing on four faculty members who have extensive experience in government: Matthew Waxman; Sarah H. Cleveland, who returned to the Law School last year after serving as the State Department’s counselor on international law; Trevor W. Morrison ’98, a former associate counsel to President Barack Obama; and Philip C. Bobbitt, a longtime official in Democratic and Republican administrations, and author of the 2008 best seller Terror and Consent.

Together, they have created a curriculum that draws from their own experiences analyzing national security law problems while engaged in government service. Morrison, for example, helped work on executive orders signed by President Obama at the beginning of his administration, addressing a range of national security detention and interrogation issues. While serving in the White House, he spent countless hours advising on a range of legal questions relating to the detention of alleged “enemy belligerents,” including the role of the courts in reviewing such detentions.

Morrison pushes those in his classes to examine tough issues of the sort that government actors face on a daily basis and encourages them to think about the broad implications underlying those topics. “In the course of grappling with these national security–specific issues, students end up grappling with some of the big, fundamental questions about the role of the federal courts in ways that go way beyond national security,” says Morrison, who last year debuted a colloquium-based course that welcomes national security law experts and practitioners to the Law School. “Very difficult questions about national security make us rethink foundational questions about the role of the courts and government power.”

For Waxman, teaching national security law in the era of WikiLeaks means dedicating multiple class sessions to the interplay between secrecy and transparency. “The law of secrecy is now a dominant theme in the classroom and in academic scholarship,” says Waxman, who has written extensively on cyber-security issues. “How do you reconcile the fundamental tension in a democracy between demands for national security secrecy and an imperative of transparency and public disclosure?”

That is a big, complicated question, of course. But students studying national security law at Columbia Law School learn to maintain analytical focus when assessing such issues. Waxman, for instance, strictly enforces a one-page limit on papers he assigns, encouraging students to think and write like government lawyers submitting their work to extremely busy, high-ranking officials. 

Cleveland tries to convey the same point to those enrolled in her International Lawyering for the U.S. Government seminar.

During an early session each semester, she divides students into several teams representing the Departments of Defense, State, and Justice, as well as the CIA. Cleveland then asks each group to assess its own position on a particular national security law issue and then to collectively draft a two-page legal position that could receive approval in the interagency process.

The exercise teaches students teamwork, policy and legal analysis, consideration of bureaucratic agendas, and succinct writing skills. “Government lawyers do these things on a daily basis, but nothing in the traditional law school curriculum prepares students for that,” says Cleveland.  

 

Outside the classroom, guest experts and practitioners help students further appreciate and understand the intricacies of national security law. Since the Hertog Program’s launch, guests have included former White House Counsel Gregory Craig, State Department Legal Adviser Harold Koh, former legal adviser to the British government Daniel Bethlehem, and CIA General Counsel Stephen Preston.

To foster discussions on how the U.S. can maintain security interests while still abiding by international law norms, Trevor Morrison recently invited to the Law School John Bellinger, the former National Security Council legal adviser and former top attorney at the State Department. Bellinger spoke to students and alumni about his participation in some of the most important national security debates of the past decade, addressing how national security law can present moral and ethical challenges unlikely to arise in other fields.

A few weeks after Bellinger’s visit, Sarah Cleveland convened approximately 30 students, professors, and visiting European lawyers around a U-shaped table in the Law School to talk shop with Judge Kimberly Prost, the United Nations ombudsperson for the Al-Qaeda and Taliban Sanctions Committee, and Katherine M. Gorove ’85, a State Department attorney who specializes in sanctions issues.

Through the sanctions committee, the U.N. Security Council imposes an asset freeze, travel ban, and arms embargo on persons or entities believed to be associated with al-Qaeda and the Taliban. The class discussed the process for considering requests submitted to the office of the ombudsperson by individuals or entities seeking to have their names removed from the sanctions lists. Through Prost’s one-woman, two-year-old office at the U.N., she works to provide due process to those seeking delisting. Students in attendance wasted no time engaging Prost on the details of her job. Why, asked a third-year student, would countries cooperate and provide classified information to her in the ombudsperson review process?

And how exactly, another student queried, does Prost go about notifying individuals in far-flung locales of their status on the list? These are “tricky problems,” Prost told the audience, as she often has little more than a village name to work from, and individuals may be unaware of their status and the process that led to their listing.

Such practical dilemmas illustrate the complexity inherent in addressing national security law issues during an era when war is waged by and against asymmetric, non-state actors. In the past, the field had been approached from a framework based around “the law of the Cold War,” Waxman says, citing arms control law, laws of military intervention arising from Vietnam, and U.S.-Soviet treaty negotiations as examples. “We’ve gone from it being very small and specialized to a massively expanded field.”

That evolution is evident at Columbia Law School, where the full-time national security law faculty also includes Daniel C. Richman, a former chief appellate attorney and assistant U.S. Attorney for the Southern District of New York, and is supplemented by visiting scholars, practitioners, and seven adjunct faculty members.

The Law School’s national security law offerings also include the hands-on activities of the Human Rights Institute, which Cleveland co-supervises with Professor Peter Rosenblum. The institute’s Human Rights Clinic involves students in pathbreaking work at the intersection of national security, counterterrorism, and human rights—including projects relating to the use and abuse of diplomatic assurances and transfers to torture, detention without trial of terrorism suspects, and the use of drones and targeted killing.

Ultimately, the diversity of experience, viewpoints, and expertise among faculty, visiting scholars, and students results in a network of leaders in the field that is a “force multiplier” in Washington and at the Law School, Morrison explains. It also provides fertile ground for scholarship, Cleveland adds. “The faculty working in this area constantly share information, bounce ideas off of each other, and test new theories,” she says. “This is an intellectually exciting place.”   

 

As a result of the heightened focus on national security law, students are beginning to view Columbia Law School as one of the world’s foremost centers for training and scholarship in the field.

Colleen Garcia, for example, says she chose the Law School largely because of its national security law faculty. After working for two years at the Naval Postgraduate School in Monterey, Calif., Garcia, who serves as president of the National Security and Law Society, spurned offers from several top law schools after speaking with Matthew Waxman. Kristin Olson ’12, a third-year student who had worked at the Department of Homeland Security for a summer during college, chose Columbia Law School over a scholarship from another top school after sitting in on a national security law class. “[At the Law School], you get the unique perspective of people with academic gravitas who are also practitioners,” Olson explains.

This past fall, students from the Human Rights Clinic were invited to travel to Newport, R.I., to discuss international legal issues and operational practices surrounding targeting with experts at the Naval War College. And national security law course offerings in the spring reflected the diversity of issues at play in this field. While sampling Hertog Program classes led by Philip Bobbitt, Sarah Cleveland, Trevor Morrison, and Waxman, students also had the opportunity to participate in a seminar on the enforcement of international law taught by Professor Lori Fisler Damrosch and learned the ins and outs of global constitutionalism from Professor Michael W. Doyle. All told, students are able to choose from dozens of national security law–related courses. And, as was the case following the al-Awlaki killing, lesson plans shift and expand to account for of-the-moment developments, meaning students and professors alike have no trouble keeping busy.

This is as it should be, says Bobbitt. He notes that, despite the failure of terrorist groups to carry out a large-scale attack on American soil since 9/11, continued preparation is of paramount importance. “Our reluctance to take steps in times of tranquility that might prepare us for some emergency,” Bobbitt says, leaves the nation ill-prepared to deal with threats without imperiling essential freedoms. In an era of cyber attacks, non-state actors, and the proliferation of weapons of mass destruction, he adds, very little is certain. One fact, though, remains clear: “These issues,” Waxman says, “are not going away.”

Elise Jordan has written for The Atlantic and The Daily Beast, among other publications.