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December 31, 2014

We spend a lot of time on this blog being critical–of people; of institutions; of judicial decisions; and of policy developments But as 2014 draws to a close, I thought it would be worthwhile to revisit the last 12 months in U.S. national security law and policy through a more positive lens, and to identify 14 examples of folks who, in my entirely subjective opinion, made meaningful and unique contributions to the field of U.S. national security law and policy this year. As you’ll see from the list that follows (which includes far more than 14 people), I have a fairly broad view of what constitutes a “meaningful and unique contribution,” and don’t believe that identifying such unsung “heroes” of our field should be limited either to outside critics or internal operators. Indeed, as my list hopefully underscores, I’m one who believes national security law and policy is a field in which meaningful accountability and vigorous and robust national defense are not a zero-sum game–and that we should therefore celebrate deserving folks on all sides of these issues. But if you disagree with that premise, or with my specific choices, feel free to suggest your own heroes (including by using the hashtag “#14NSLHeroes” on Twitter).

14 Heroes in U.S. National Security Law and Policy for 2014

  1. Hon. Gladys Kessler: Although her series of rulings in the Guantánamo force-feeding litigation aren’t likely either to end up in law school casebooks or to become part of the national security canon, it’s hard to think of a federal judge who more aggressively (or importantly) pushed back against questionable governmental claims to secrecy during 2014 than Judge Gladys Kessler of the U.S. District Court for the District of Columbia. This post of mine from May summarized Judge Kessler’s three most significant rulings–including her May 23 order demanding that the government produce 34 videotapes relating to the force-feeding of the lead plaintiff, Abu Wa’el Dhiab (which the government is apparently appealing to the D.C. Circuit). Whether or not it’s a coincidence that (1) Dhiab has since been released from Guantánamo; or (2) the force-feeding practice seems to have been scaled back rather dramatically, it’s hard to find a better case of a federal judge using her office to hold the federal government to account in a 2014 national security case. [Honorable Mention: Chief Justice John Roberts, for his unanimous opinion for the Supreme Court in Riley v. California, creating surprising consensus among the Justices that the Fourth Amendment should take account of new technologies, capabilities, and practices. ]
  2. The Electronic Frontier Foundation, Jason Leopold, and Charlie Savage: It’s an understandable impulse to assume that all of the previously secret U.S. national security and counterterrorism policies about which we’ve learned in the past 18 months can be traced to leaks –including those by Edward Snowden–or voluntary disclosures by the government. In fact, though, a lot of what we now know about, among other things, surveillance, legal rationales for targeted killings, and a range of other programs can be traced either directly or indirectly to thankless and painstaking litigation under the Freedom of Information Act (FOIA), especially a series of FOIA suits pursued by the Electronic Frontier Foundation (EFF), VICE News’s Jason Leopold, and the New York Times‘s Charlie Savage. As the FOIA Project explained in this post, these FOIA suits led, inter alia, to the disclosure of one of the OLC memos relating to the targeted killing of Anwar al-Awlaki; a range of previously classified FISC opinions; a battery of previously classified reports by the DOJ Inspector General; and a litany of other important documents on matters of significant public concern. Although the Times was the only “legacy news organization” to bring a FOIA suit in 2014 (how is that possible?), these successes underscore both (1) the continuing significance of FOIA in providing an important means of holding the government to account; and (2) the extent to which more journalists, from both old and new media, may be incentivized to aggressively pursue FOIA litigation in the years to come.
  3. Maj. Jason Wright: Gabriel Urza told the story for Slate better than I ever could, but U.S. Army Major Jason Wright was one of the military counsel assigned to Khalid Sheikh Mohammed in the Guantánamo military commissions, who resigned his commission in August in protest when the Army refused to grant him a deferral from attending a nine-month graduate program in military law–an assignment that would have required him to withdraw from the defense team, and thereby compromise his ethical obligations to his client. The Guantánamo litigation is replete with examples of lawyers living up to the very highest standards of the profession (on both sides), including another example highlighted below. But when it comes to personal sacrifice, a lawyer who gives up a promising military career in order to minimize the potential prejudice to his client in a system full of such prejudices strikes me as about as noble as it gets. 
  4. Senators Mark Udall and Ron Wyden: Insofar as surveillance is concerned, this past year’s developments truly pale in comparison to those of 2013–especially in light of the Senate’s November rejection of Senator Leahy’s version of the “USA FREEDOM Act.” But in an otherwise lost year for surveillance reform, special recognition is still due to the outgoing Senator from Colorado and the senior Senator from Oregon, both of whom have continued to lead the charge in Congress for improving and increasing oversight and accountability for government surveillance programs–and, indeed, for national security and counterterrorism programs, writ large. Indeed, Udall’s December 10 floor speech about the still-classified “Panetta Review” (the then CIA Director’s 2011 review of the CIA’s detention program) was one of the more remarkable public statements by a politician on a national security topic all year. As Jameel wrote back in November, “there will be surveillance reform,” and whatever shape it ends up taking, much will be owed to Senators Udall and Wyden. It’s just too bad that at least one of them will no longer be in Congress when the time comes.
  5. The “Patriots”: No, not those Patriots (my wife’s debatable sports allegiances notwithstanding). But for all the criticism that has been leveled against the intelligence community in 2014, it’s worth reminding ourselves just how important the IC has been in, among other things, providing the State Department with the kind of actionable intelligence that allowed it to go on record with regard to the threat of genocide facing the Yazidis in northern Iraq. For every government official who crosses the line in the conduct of U.S. national security law and policy, there are hundreds–if not thousands–of other officials and ordinary career civil servants who are not only operating within the bounds of the law, but whose work is making a real difference when it comes to protecting Americans and American interests both at home and overseas. I suspect we’ll never agree about the P-word–and whether it is ever appropriately used to describe either (1) those who engaged in unlawful surveillance and/or abusive interrogations, on the one hand; or (2) those who leak highly controversial national security secrets with an eye toward informing public discourse, on the other. But if there’s one thing I hope everyone can get behind, it’s that there are thousands of unsung heroes in the employ of the U.S. government whose names we’ll never know–and whose work is in the best spirit of American patriotism, however one defines that term.
  6. Carol Rosenberg: Just last week, Linda Greenhouse noted how it’s been over a year since she’d written about Guantánamo. And earlier this summer, a fellow law professor blogger wrote that “nobody cares” anymore about the plight of the (now 132 127) detainees. He clearly hasn’t met the Miami Herald‘s Carol Rosenberg–the dean of the Guantánamo press corps, and by far the single most important person when it comes to keeping the world informed about the day-to-day goings-on in both the detention camps and the military commissions litigation. To be sure, Carol’s tireless efforts throughout 2014 aren’t all that different from her similarly thankless work over most of the past 13 years. But the more time goes on and our attention drifts away from Guantánamo, the more important Carol has become in not letting us forget that there are real people on the other end of these cases–who don’t have the luxury of being distracted by developments elsewhere. As Carol has explained, “I feel like I have an institutional knowledge. Everyone else rotates in and out of here. The soldiers come and go, the lawyers come and go, most of the reporters come and go. I feel a responsibility to stay. I want to see how it ends. I’m a little concerned it’s never going to.”
  7. Robert MacLean and John Napier Tye: A common rejoinder from those who have been critical of the Snowden disclosures and other national security leaks is that federal law already provides protections for government employees to act as “whistleblowers,” as opposed to leakers, when they come into possession of confidential information relating to fraud, abuse, or illegal government conduct, or some more general threat to national security. With that in mind, it’s worth recognizing 2014’s two most important whistleblowers–Robert MacLean and John Napier Tye–who worked within the system to shed important light on significant and potentially troubling programs. MacLean is the former air marshal who was fired by the TSA after disclosing serious lapses in post-9/11 aviation security (and who sued, claiming that his disclosures were protected by the Whistleblower Protection Act). Although the facts giving rise to MacLean’s case arose over a decade ago, his case, a critical test for the scope of the WPA, finally reached the U.S. Supreme Court this year, where it was argued on November 4. Tye is the former State Department aide whose July op-ed in the Washington Post gave vital substance and substantiation to concerns privacy and civil liberties groups have raised for years about the government’s ability to spy on Americans by “incidentally” collecting their communications under Executive Order 12,333. Unlike MacLean’s disclosure (shortly after which the TSA abandoned the controversial policy shift), the jury is still out on whether Tye’s whistleblowing will lead to meaningful reforms. What cannot be gainsaid about either, though, is the significance of their contributions to our public discourse.
  8. Senator John McCain: There’s a joke told in various guises in Washington these days, the punchline of which is the likelihood that Congress would not agree on a resolution affirming that the sun will come up tomorrow; that the days of the week all end in “y”; that the sum of 2 and 2 is 4; etc.–that the politics of the moment are so terribly fraught that nothing will be bipartisan, especially in the national security space. It’s in that context that Senator McCain’s impassioned floor statement supporting the disclosure (and substance) of the Senate Select Committee on Intelligence’s study of the CIA detention and interrogation program is so noteworthy. As McCain explained,

    We have made our way in this often dangerous and cruel world, not by just strictly pursuing our geopolitical interests, but by exemplifying our political values, and influencing other nations to embrace them. When we fight to defend our security we fight also for an idea, not for a tribe or a twisted interpretation of an ancient religion or for a king, but for an idea that all men are endowed by the Creator with inalienable rights. How much safer the world would be if all nations believed the same. How much more dangerous it can become when we forget it ourselves even momentarily.

    It’s terribly unfortunate that the politics of the present are such that it was news when a Republican Senator expressed these sentiments about a report handed down by Senate committee controlled by Democrats. Some things just shouldn’t be partisan. But in a day and age when everything is a left-right issue, Senator McCain’s refusal to treat torture–or the public disclosure of the SSCI report–as such is a standard to which I hope far more politicians aspire.

  9. Cori Crider and Alka Pradhan: It’s difficult–and probably more than a little unfair–to single out any of the lawyers in a community of hundreds whose work is devoted to advocacy and litigation on behalf of Guantánamo detainees, victims of drone strikes, or other unpopular subjects of U.S. counterterrorism policies, especially non-citizens overseas. But in 2014, the work of Cori Crider and Alka Pradhan stood out. Cori heads the “Abuses in Counterterrorism” team for Reprieve (a UK NGO); Alka is the Counterterrorism Counsel for Reprieve’s U.S. operation. Both were instrumental not just in leading the force-feeding litigation described in #14 above and a host of other ongoing Guantánamo claims, but also in pushing for both greater disclosure of U.S. targeted killing operations overseas and redress for the victims thereof–including through solatia payments. Even without their work in Dhiab, Cori, Alka, and their colleagues at Reprieve have been at the forefront of efforts to promote accountability for U.S. drone strikes in Yemen, Pakistan, and elsewhere–work that is as important as it is invisible.
  10. James Risen: Few of us will ever be in a position where faced with a choice between betraying our professional and ethical standards and going to jail. It remains to be seen whether journalist James Risen is going to end up in that position when the U.S. government calls him as a witness in the criminal trial of Jeffrey Sterling early next year. But Risen’s refusal to divulge the identity of his source for stories pertaining to a covert CIA operation against Iran’s nuclear program led to a rare showdown over the potential liability of a reporter under the Espionage Act. And it seemed that this showdown would come to a head after the Supreme Court refused to hear Risen’s appeal from lower court rulings that rejected his claim of a reporter’s privilege. Earlier this month, however, Attorney General Eric Holder announced that he will not force Risen to name his source. Whether Holder (or his successor) will force Risen to answer other questions when called to testify early next year is an open–and important–issue heading into 2015.
  11. Raj De and Bob Litt: Of all of the folks on this list, I suspect this entry may prove the most controversial. But whether one is critical or supportive of the U.S. government’s surveillance authorities, what can’t be denied is the active, public, and seemingly ubiquitous role both Raj De (General Counsel of the National Security Agency) and Bob Litt (General Counsel of the Office of the Director of National Intelligence) have played in defending the government’s position and engaging in respectful and substantive dialogue with critics. Hardly a conference goes by these days that doesn’t include one or both of them on the agenda–including this weekend’s Annual Meeting of the Association of American Law Schools (not exactly a pro-government crowd, historically). It says quite a lot (not all of which is good) that the two best and most visible voices in defense of the IC have been the general counsels of two of the constituent agencies. But it’s worth bearing in mind the extent to which Raj and Bob are thereby subjecting themselves to attack from all quarters–not just from privacy and civil liberties groups, who are deeply critical of their legal arguments, but from their own houses, where folks can’t understand their willingness to engage in such public debates over clandestine surveillance activities. If raising the level of debate is an important goal in this field, then such repeated, respectful civic engagement by senior government lawyers is an essential element thereof–and we’d all benefit from having more lawyers like Raj and Bob in senior government positions. [Honorable Mention: The government lawyers and other officials who worked behind the scenes to achieve the United States’ change in position with respect to the scope of the U.N. Convention Against Torture, as Sarah Cleveland documented here.].
  12. Ayman Latif and Rahinah Ibrahim: With little meaningful national security legislation coming out of Congress in 2014, the onus for pursuing true policy reform shifted to the courts. And few of the civil suits challenging national security policies have had more dramatic effects thus far than the separate suits pursued by Ayman Latif and Rahinah Ibrahim, challenging their inclusion on the “No Fly List.” Latif is the lead plaintiff in a case brought by the ACLU on behalf of 13 U.S. citizens and lawful permanent residents (four of whom are veterans) against Attorney General Holder, challenging the lack of an adequate process for them to seek to contest their inclusion on the list. In a landmark decision in June, Oregon district judge Anna Brown ruled for the plaintiffs, holding that they have a due process right to far greater process (and, as part of that process, to receive far more information from the government about why they were included). Jen Daskal covered that ruling in detail in this post. Judge Brown’s ruling in Latif came just a few months after a San Francisco federal judge ordered the government to remove Rahinah Ibrahim, a non-citizen based outside the United States, from the no-fly list, after Ibrahim’s years-long litigation revealed that she had been placed on the list due to a preposterously obvious clerical error. Latif is almost certainly a more important decision going forward, but Ibrahim was a precedent-setting decision–the first time a federal judge ever ordered someone off of the no-fly list–that would not have been possible but for the dogged determination of Ibrahim and her counsel. Together, these plaintiffs–and their lawyers–not only recorded two of the most significant national security litigation accomplishments in 2014, but almost certainly will have a net-positive effect on the underlying accuracy of these lists going forward, something we all should support.
  13. The Rescuers: Although we already recognized above those tens of thousands of government officials and other employees operating within the bounds of the law whose work is making a real difference when it comes to protecting Americans and American interests both at home and overseas, special recognition is owed to those military personnel who quite literally put their lives on the line in 2014 in efforts to rescue others–including the military teams who delivered aid to the Yazidis and the special forces units who carried out covert operations trying to rescue hostages held by the Islamic State. Some of these missions succeeded; others did not; and there are surely others about which we don’t yet–and may never–know. The relevant point for present purposes is that, when it comes to national security heroes, it’s hard not to put right at the top of any list those who put themselves in harm’s way just for a chance of saving those who can’t save themselves.
  14. Senator Dianne Feinstein, Daniel Jones, Evan Gottesman, Chad Tanner, and Alissa Starzak: With that buildup, my top choice for 2014 may be both modest and somewhat anticlimactic. But it’s hard to look back on the realm of U.S. national security law and policy and not see the battles over (and actual release of) the SSCI torture report as the year’s defining moment–regardless of where you come down on the merits of the report’s substance or public disclosure. And whereas it’s easy to recognize Senator Feinstein for her leadership of this effort, the Senator herself was the first to emphasize that the “heroes” of the project are the staffers who devoted thousands of hours to compiling the 6700-page study, and who, for their troubles, ended up being accused of wrongdoing (and, apparently, having their work monitored by the CIA). There is perhaps no more important aspect of checks and balances in U.S. national security law and policy than meaningful congressional oversight. And whereas I’ve been quite critical of Congress–and, indeed, of Senator Feinstein–for providing insufficient oversight of U.S. surveillance activities, the torture report is, in my view, an example of the right kind of congressional oversight notwithstanding its imperfections. It has clearly sparked a national dialogue about controversial government activities about which the public was previously (largely) in the dark. And while lots of folks played a role in bringing this story into the public domain, none were more important than Senator Feinstein’s key staffers, Dan Jones, Evan Gottesman, Chat Tanner, and Alissa Starzak–with an honorable mention to the other 16 individuals who helped bring the report to fruition–Jennifer Barrett, Nick Basciano, Michael Buchwald, Jim Catella, Eric Chapman, John Dickas, Lorenzo Goco, Andrew Grotto, Tressa Guenov, Clete Johnson, Michael Noblet, Michael Pevzner, Tonmy Ross, Caroline Tess, James Wolfe, and the SSCI’s Staff Director throughout the review, David Grannis,

Thank you, to everyone named above (and plenty of folks not mentioned), for making such important contributions to our field in 2014.