National Security Lawyering: The Best View of the Law as a Regulative Ideal

In The National Security Lawyer in Crisis: When the “Best View” of the Law May Not Be the Best View, Robert Bauer describes the challenges for executive branch lawyers providing advice during a national security crisis. Bauer focuses on two especially perilous episodes in United States history—the Cuban Missile Crisis and the run-up to U.S. involvement in World War II—and analyzes the legal advice Presidents Kennedy and Roosevelt, respectively, received. In both cases, widely respected lawyers gave legal advice that supported the President’s preferred outcome, but almost certainly did not represent what the lawyers considered the best view of the law. The “best view” model of lawyering appears to have no formal or widely recognized definition, either in Bauer’s article or elsewhere in the literature. Perhaps the best articulation of the concept is in the memorandum that sets out the “best practices” for the Department of Justice’s Office of Legal Counsel (OLC), which directs OLC lawyers to “provide advice based on [their] best understanding of what the law requires—not simply an advocate’s defense of the contemplated action or position proposed by an agency or the Administration.” In rendering this advice, they must seek “to provide an accurate and honest appraisal of applicable law, even if that appraisal will constrain the Administration’s or an agency’s pursuit of desired practices or policy objectives.” Bauer takes a dim view of this best view model, which he considers rigid, disconnected from important policy context, and unworkable in a crisis. Bauer proposes an exception to the best view approach for lawyers facing a national security crisis. Lawyers under those circumstances, he argues, should be free to provide alternative legal analysis that supports the preferred policy position, so long as it is credible and made in good faith. Bauer’s proposal to create an exception to the best view standard for crises, however, risks compromising the quality of national security lawyering overall. National security lawyers in the Executive Branch practice in an environment without many of the formal and informal incentives for high-quality legal advice that are common in other fields. The stakes are unusually high, which increases pressure from policymakers. At the same time, there is less external oversight from the courts and Congress, and the secrecy of much of the subject matter makes peer and public input difficult. Because of these challenges, it is important to build into the process of developing national security legal advice as many protections for high-quality legal analysis as possible. The best view standard is such a protection, and a critical one. The best view standard is important to high-quality national security lawyering not because it always results in an objectively “right” legal answer—that is not possible. Instead, the best view standard acts as a guidepost—a regulative ideal— for lawyers, reminding them of their distinctive role in the process and grounding them with an external professional standard. It serves as a counterweight to the inevitable pressures that these lawyers face. It also honors and upholds the unique responsibilities of Executive Branch lawyers to assist the President in carrying out his constitutional responsibility to see that the laws are faithfully executed. Bauer’s proposal to recognize a lower standard in crisis situations would subvert this protection

General Counsel of the FBI, James Baker, in Conversation with Professor Mary DeRosa on the FBI and International Justice

Mary DeRosa, Georgetown Law Professor, former Deputy Counsel to President Obama for National Security Affairs, former Legal Advisor to the National Security Council under President Obama, and former Deputy Legal Adviser to the National Security Council in the Clinton Administration, interviewed current General Counsel of the Federal Bureau of Investigation (FBI), James Baker. The two discussed the FBI’s role in international law enforcement and the domestic tension between technological advancement and law enforcement duties

The President and Nuclear Weapons: Authorities, Limits, and Process

There is no more consequential decision for a president than ordering a nuclear strike. In the Cold War, the threat of sudden nuclear annihilation necessitated procedures emphasizing speed and efficiency and placing sole decision-making authority in the president’s hands. In today’s changed threat environment, the legal authorities and process a U.S. president would confront when making this grave decision merit reexamination. This paper serves as a resource in the national discussion about a president’s legal authority and the procedures for ordering a nuclear strike, and whether to update them

The Trade Effects of Preferential Arrangements: New Evidence from the Australia Productivity Commission

This paper critically examines “new” evidence from the gravity model that indicates the majority of preferential trading arrangements (PTAs) today are predominantly trade diverting. This new evidence on trade diversion was presented in a recent Australia Productivity Commission (APC) working paper. Although no major faults are found in the methodology of the APC study, the present analysis finds the opposite conclusion—that the majority of current PTAs are predominantly trade creating—when a variant of the gravity model formulated by Andrew Rose is applied to upto- date regression data using a variety of econometric methods, including the Tobit regression method employed by the APC study.trade policy, preferential trading arrangements, free trade agreements, gravity models

Deliberative Constitutionalism in the National Security Setting

Deliberative democracy theory maintains that authentic deliberation about matters of public concern is an essential condition for the legitimacy of political decisions. Such deliberation has two features. The first is deliberative rigor. This is deliberation guided by public-regarding reasons in a process in which persons are genuinely open to the force of the better argument. The second is transparency. This requires that requires that officials publicly explain the reasons for their decisions in terms that citizens can endorse as acceptable grounds for acting in the name of the political community. Such requirements would seem to be especially important in the national security setting, where decisions can have profound life-and-death consequences. Yet this is the setting in which transparency often is least feasible on the part of the Executive branch. Officials may be constrained for good reasons from fully explaining the bases for their decisions. While such reason-giving is especially important to the perceived legitimacy of a decision, anticipating the need to provide it also can enhance deliberative rigor. Limited transparency thus creates the risk both that crucial decisions may not be regarded as legitimate, and that the deliberative process will not be as robust as it should be. In this chapter, we argue that ensuring robust internal deliberative processes in the national security setting can compensate at least to some degree for this limitation. Appreciating the demands of deliberative democracy theory can help inform this process by illuminating how various procedural mechanisms may promote the goals that transparency purports to serve. We focus on the Lawyers Group, which includes senior national security lawyers from across the government, as an example of an arrangement that can help further the ends of deliberative democracy by providing a vehicle for deliberation that meets many, even if not all, of the requirements of that theory. Coordinated by the legal advisor for the National Security Council, this group discusses national security issues that will be presented to the President. We regard our analysis as contributing in two ways to deliberative democratic theory. First, it focuses on the possibility of satisfying the requirement of this theory in a setting in which decision-making often falls short of the demands of full transparency. Second, it suggests how legal analysis may play a distinctive role in the deliberative process. There are limits to what the Lawyers Group can accomplish. We believe, however, that it should be assessed in terms of its contribution to the larger national security deliberative system of which it is a part. From this perspective, the Group’s compliance with several prescriptions of deliberative theory helps it strengthen, even if it does not guarantee, the rigor and persuasiveness of the justifications that the President is able to provide for national security decisions

Electrically monitoring DNA repair by photolyase

Cyclobutane pyrimidine dimers are the major DNA photoproducts produced upon exposure to UV radiation. If left unrepaired, these lesions can lead to replication errors, mutation, and cell death. Photolyase is a light-activated flavoenzyme that binds to pyrimidine dimers in DNA and repairs them in a reaction triggered by electron transfer from the photoexcited flavin cofactor to the dimer. Using gold electrodes modified with DNA duplexes containing a cyclobutane thymine dimer (T T), here we probe the electrochemistry of the flavin cofactor in Escherichia coli photolyase. Cyclic and square-wave voltammograms of photolyase deposited on these electrodes show a redox signal at 40 mV versus normal hydrogen electrode, consistent with electron transfer to and from the flavin in the DNA-bound protein. This signal is dramatically attenuated on surfaces where the pi-stacking of the DNA bases is perturbed by the presence of an abasic site below the T T, an indication that the redox pathway is DNA-mediated. DNA repair can, moreover, be monitored electrically. Exposure of photolyase on T T-damaged DNA films to near-UV/blue light leads to changes in the flavin signal consistent with repair, as confirmed by parallel HPLC experiments. These results demonstrate the exquisite sensitivity of DNA electrochemistry to perturbations in base pair stacking and the applicability of this chemistry to probe reactions of proteins with DNA

Predicting Trade Expansion under FTAs and Multilateral Agreements

This paper examines the historical record of eight recent free trade agreements (FTAs). It also investigates the predictive power of two popular quantitative world trade models—the single-equation gravity model and the multiequation comput-able general equilibrium (CGE) model—as applied to three major trade liberalization agreements adopted during the 1990s: Mercosur, NAFTA, and the Uruguay Round Agreement, using the Rose gravity model and the GTAP general equilibrium model. Both models are found accurate in some instances, but intervening influences in the wake of trade liberalization episodes confound the challenge of drawing a strong conclusion in favor of one modeling approach over the other. Between the “naïve” gravity model and “naïve” CGE model predictions, we find that the former tends to overpredict intrabloc trade expansion (especially over horizons of five years and less) while the latter tends to underpredict. CGE models remain favored for ex post analysis of welfare impacts and the direct and indirect linkages between policy reforms and the numerous other economic variables of concern to policymakers and the public at large.gravity models, CGE models, regional trading arrangements

Using Coronal Loops to Reconstruct the Magnetic Field of an Active Region Before and After a Major Flare

The shapes of solar coronal loops are sensitive to the presence of electrical currents that are the carriers of the nonpotential energy available for impulsive activity. We use this information in a new method for modeling the coronal magnetic field of AR 11158 as a nonlinear force-free field (NLFFF). The observations used are coronal images around time of major flare activity on 2011/02/15, together with the surface line-of-sight magnetic field measurements. The data are from the Helioseismic and Magnetic Imager and Atmospheric Imaging Assembly (HMI and AIA, respectively) onboard the Solar Dynamics Observatory (SDO). The model fields are constrained to approximate the coronal loop configurations as closely as possible, while also subject to the force-free constraints. The method does not use transverse photospheric magnetic field components as input, and is thereby distinct from methods for modeling NLFFFs based on photospheric vector magnetograms. We validate the method using observations of AR 11158 at a time well before major flaring, and subsequently review the field evolution just prior to and following an X2.2 flare and associated eruption. The models indicate that the energy released during the instability is about $1\times10^{32}$ erg, consistent with what is needed to power such a large eruptive flare. Immediately prior to the eruption the model field contains a compact sigmoid bundle of twisted flux that is not present in the post-eruption models, which is consistent with the observations. The core of that model structure is twisted by $\approx0.9$ full turns about its axis.Comment: ApJ, in pres

Seismic Constraints on Interior Solar Convection

We constrain the velocity spectral distribution of global-scale solar convective cells at depth using techniques of local helioseismology. We calibrate the sensitivity of helioseismic waves to large-scale convective cells in the interior by analyzing simulations of waves propagating through a velocity snapshot of global solar convection via methods of time-distance helioseismology. Applying identical analysis techniques to observations of the Sun, we are able to bound from above the magnitudes of solar convective cells as a function of spatial convective scale. We find that convection at a depth of $r/R_\odot = 0.95$ with spatial extent $\ell <20$, where $\ell$ is the spherical harmonic degree, comprise weak flow systems, on the order of 15 m/s or less. Convective features deeper than $r/R_\odot = 0.95$ are more difficult to image due to the rapidly decreasing sensitivity of helioseismic waves.Comment: accepted, ApJ Letters, 5 figures, 10 pages (in this version