In a February 2012 Dean’s Lecture at Yale Law School titled “National Security Law, Lawyers, and Lawyering in the Obama Administration,” Jeh Johnson, then-General Counsel of the Department of Defense, undertook a strong defense of the Obama Administration’s legal regime and policies supporting the U.S. military’s counterterrorism efforts against al Qaeda and its associated forces. Scholars and lawyers of reasonable minds can — and ought to— rationally debate many of the finer points of Johnson’s legal analysis, including the limitations he argues are placed upon the United States government’s use of force by certain precepts of international law. The goal in this short Essay, however, is not to consider the merits of Johnson’s legal analysis. Instead, this Essay highlights the various roles that national security lawyers in the executive branch play and the variety of ethical responsibilities those roles entail. This Essay critically discusses Johnson’s broad assertion that the government—and a fortiori, the government’s lawyers—must guard against aggressive interpretations of its authorities, lest such interpretations discredit the government’s efforts, provoke controversy, and invite challenge. This Essay argues that Johnson’s failure to contextualize this position—to specify whether it applies to all situations that a government lawyer faces, or whether it is limited only to certain contexts—may lead a government lawyer to fail to meet his or her core ethical responsibilities when serving as an advocate for the government in national security matters.
Johnson’s comments focus generally on defending the views of the Obama Administration’s national security lawyers. Johnson highlights the apparently vigorous debate among the current Administration’s lawyers and policymakers, while also criticizing the prior Administration and some of its lawyers. What Johnson’s speech does not do, however, is engage in any robust discussion of the various roles and responsibilities — particularly the various ethical responsibilities — of national security lawyers in the executive branch. His speech also fails to differentiate among these various roles and responsibilities, and thus may lead executive branch lawyers to, at times, misconstrue their ethical obligations. This Essay aims to fill that gap in Johnson’s effort and highlight the potential ill effects of making sweeping generalizations about the government’s interpretation of its authorities.
Jamil N. Jaffer is currently a Congressional committee staffer and also serves as an Adjunct Professor of Law at George Mason University School of Law and as an Adjunct Professor at the National Intelligence University. Mr. Jaffer previously served in the White House as an Associate Counsel to the President in the Bush Administration and as Counsel to the Assistant Attorney General in the National Security Division of the United States Department of Justice, among other positions. The views expressed in this Essay are Mr. Jaffer’s alone and do not represent the views of any current or former employer.
