September 30, 2010
Harvard Law School students were treated to a unique opportunity to gain pointers on launching and developing careers in international and public-interest law on Sept. 13, when John B. Bellinger III '86, chief legal adviser to Secretary of State Condoleezza Rice during the Bush administration, gave a talk sponsored by the Office of Public Interest Advising.
Bellinger, now a partner heading the public international law practice at Arnold & Porter in Washington, D.C., traced his own career in government and private practice -- and his rapid rise to prominence -- to demonstrate how a young lawyer interested in government service might proceed.
Following graduation from HLS, Bellinger became an associate doing international banking law at Shaw Pittman in Washington, D.C., until 1988, when a friend told him that then CIA director William Webster was looking for a new special assistant. He applied for the job, got it, and discovered that national security and international law were what he wanted to do.
"It was an interesting time," he recalled. "It was the end of the Cold War, the fall of the Berlin Wall, the first Gulf War, the invasion of Panama, Tiananmen Square. For someone interested in foreign affairs, it was a little like being a kid in a candy store."
After Webster stepped down in 1991, Bellinger returned to private practice. But he told students that he had the bug to return to government service and did so in 1995, taking a job as general counsel to a Presidential commission investigating post-Cold War roles for the U.S. intelligence community.
It would be the first of a series of five government jobs for Bellinger, culminating in two influential positions during the Bush Administration: as legal adviser to the National Security Council at the White House from 2001 to 2005 and then as head of the 180-lawyer legal department at State during the George W. Bush administration.
Bellinger was still new to his NSC job when terrorists struck the U.S. in 2001, prompting some Administration responses with which Bellinger says he disagreed.
Bellinger declined to discuss details of his differences with other agencies and offices involved in planning the response to terrorism--Justice, Defense, and the Vice President's office--but said "it was trying for me personally as I was trying to resist what I felt were mistakes that were being made by some of my colleagues and to move us into a direction that I felt was more consistent with international law."
Following his return to private practice in 2009, however, Bellinger has made clear that he fought for application of minimum Geneva Convention standards for suspected terrorist detainees when others in the Bush Administration, who held sway, did not. Bellinger's position was vindicated by the U.S. Supreme Court's 2006 ruling in Hamdan v. Rumsfeld, in which the justices rejected the administration's position.
In addition to his law practice these days, Bellinger likes to take time to talk to students about careers in international law and government as he did at HLS.
He told students that if they're interested in working for the government, they should take steps now and write papers and law-review articles on international law topics.
He said a great first step is to do what he did: seek to find a job as a special assistant to a senior government official. They should keep watch for Congressional special committees and potential jobs as general counsels to those committees.
He also urged students to keep in mind that many agencies hire young lawyers to practice international and national security law.
"The Legal Adviser's office (at State) is the center of public international law in the government, but there are many other departments where national security and international law are practiced," he said. "If you're interested in those positions, you should apply."
- Dick Dahl
In an interview with Dick Dahl, Bellinger talked about his former role as the chief legal adviser for the State Department.
ON THE FUNCTIONS OF THE LEGAL ADVISER'S OFFICE AT STATE
"A principal function of the lawyers in the Legal Adviser's office is drafting and working with other countries on the text of international agreements or treaties. The US probably enters into several hundred international agreements with other countries every year, which can be bilateral or multilateral. Many of those don't have to be done as treaties--there's essentially an acceptance between the Senate and the executive as to which agreements have to be done as treaties. Only a dozen or a couple dozen each year are done as formal treaties that then have to be put forward to the Senate [for advice and consent]."
"It is often said that the Legal Adviser is the international law “conscience” of the U.S. Government. But the role of the Legal Adviser is not to be an inspector general, looking for wrong-doing. Your job is basically to try to help your clients do what they want to do. But if your clients persist in trying to do something that you think is wrong, you have to tell them that. Ideally, you don't just say, 'No, you can't do that.' You say, 'No, you can't do that, but I understand what it is that you're trying to do; let me help you try to do it in a different way that would be legal.' Frankly, if you don't try to work with your clients, then you soon won't have any clients. Even in government, where your legal services are free, you'll find that your clients will do things without you. So what you want, while guarding your independence, is to try to help your policy bureaus do the things that they want to do."
"In a big agency like the State Department you may have policy bureaus that completely disagree with each other. You may have a bureau of democracy and human rights that may be pushing very hard on a human-rights agenda while you have a regional bureau that's very concerned about not antagonizing a particular foreign state--and you're the lawyer for both of them."
"They're generally necessary, and the Obama Administration has said they will continue them because we don't have a perfect web of extradition treaties amongst countries. So if there's a terrorist in an essentially lawless place like Somalia or Sudan or someplace where we don't have an extradition treaty in place and yet that country would be willing to turn the individual over to us, it can't be done pursuant to an extradition treaty. The Legal Adviser's office will generally be involved in those. During the Bush administration after 9/11, as with so many things, there was a great deal of flailing around because the US had thousands of troops in Afghanistan, the CIA had operations all over the world, there were clearly a lot of things being done that were not routine, including some renditions that may have gone awry. Those were much better cabined by the second term of the Bush Administration. The Obama Administration announced very quietly in August of last year that they would be continuing the policy of rendition--but they essentially said, 'We will only conduct good renditions, pursuant to careful scrutiny and, if it's not rendition to the United States but rather from one country to another country, only with safeguards to ensure that a person would not be mistreated.' So I think what we'll see now is a greater role for the State Department ... in fact, in the second Bush Administration we saw a much greater role for the Legal Adviser's office in all of the international terrorism issues. "
DO YOU THINK PEOPLE WERE JUST FEELING THEIR WAY?
"Well, there were people in some parts of the government who felt very strongly that certain actions needed to be taken in the aftermath of 9/11, and other parts of the government didn't need to be involved--for example, the setting up of the military commissions initially. By the second term, I think the senior leadership in the administration had begun to realize there had been bad processes, that it was important to have people working together, and while we might not always agree on everything, it was important that the Legal Adviser's office play a role in these different decisions."
"You've certainly seen that continuing now. The Legal Adviser's office is playing a key role in all of these decisions on terrorism."
DID YOU FEEL LIKE YOU WERE BUTTING HEADS WITH THE JUSTICE DEPARTMENT, THE PENTAGON, AND OTHERS?
"Administrations are not unitary places; people have different views. Even in the Obama Administration, I think that we're seeing many of the same fights among exactly the same departments, maybe with everybody moving one chair to the left. I was probably perceived as holding down the moderate wing among lawyers in our administration and was in a number of disagreements with the Justice Department and the Defense Department, and I think you now see Harold Koh in many of the same disagreements with the Defense Department and the Justice Department."
YOU SUPPORTED THE APPLICATION OF THE GENEVA CONVENTIONS TO NON-STATE ACTORS--OR TO A DEGREE?
"Yes, to a degree. It's complicated as to whether the treaties in their entirety apply. I didn't try to say that these people ought to all be held as prisoners of war, but I said that certain minimum protections should apply. What's interesting is that those battles continue to this day. The Obama Administration has still not announced that the Geneva Conventions apply in any greater way [to non-state actors] than the Bush Administration did."
WHAT ABOUT HAMDAN? DIDN'T THAT CHANGE THINGS?
"Well, the Supreme Court made the decision that Common Article 3 (of the Conventions) applied. But since then, the Obama Administration has not changed its position. They've affirmed the Geneva Conventions and the President has gotten significant applause--even in his Nobel speech, when he said that we are reaffirming the US commitment to the Geneva Conventions, those present applauded--but the Obama Administration is not doing anything significantly different in terms of applying the Geneva Conventions. And I understand there continues to be disagreements within the Obama Administration, I think both on legal grounds and on political grounds. I suspect that in part what's going on here is that the Obama Administration does not want to announce, particularly during an election year, more 'rights' for terrorists. So what I have been urging is that let's state that we accept these minimum standards so that we can say that we are holding people pursuant to an international legal regime."
DID HAMDAN FEEL LIKE A PERSONAL VICTORY?
"My predecessor, Will Taft, another Harvard Law School graduate, and I had been pushing for application of Common Article 3 for quite some time. I did feel vindicated. I had argued inside the administration that if we continued to argue that no international law applied, that sooner or later the courts were going to come out differently."
BUT YOU THINK THAT THE 'WAR ON TERROR' PARADIGM IS CORRECT?
"I've never liked the label 'global war on terror.' I thought it ended up doing us more harm than good. It gave our allies something to shoot at and suggested there was sort of a 'holy war' aspect to it. I also don't think a military paradigm ought to be applied to everything the way some people, including members of Congress, think. But I do think it is appropriate to hold individuals who have been captured by our military on the battlefield in a fight under the laws of war. So I agree with the Obama Administration on that. I think they have adopted an appropriate middle ground to use federal criminal laws for some people, but they're essentially holding other individuals under the laws of war and I think that's a correct decision."
TO WHAT DEGREE WERE YOU INVOLVED IN SECRETARY RICE'S PLANNING PROCESSES?
"I was particularly privileged because I had a longstanding relationship with Secretary Rice. I had been her lawyer for four years at the White House and then had run her confirmation and transition. So I ended up having the ideal position for any agency general counsel, which was to able to participate with the head of the agency in almost any meeting that I desired to participate in. That's not always true. Many legal advisers never met their secretary before and, no matter how famous they may be, they have to spend a lot of time developing that relationship with their principal client. I started my morning every day with her in a small inner-staff meeting and we'd end the day with a further meeting, which we called the wrap up. I did not just sit in my office and occasionally get called by the secretary. I really had free rein to comment and participate. Of course, I tried to stay in my lane the best I could. I do know that Harold Koh is similarly privileged because he's had a preexisting relationship with Secretary Clinton. That's important because it really empowers the Legal Adviser's office. When I was Legal Adviser, because I had a good direct connection to the Secretary, I could raise any issue that I wanted with her at any time."
IN THE EXECUTIVE BRANCH, WHO HAS THE FINAL WORD ON INTERNATIONAL LEGAL ISSUES?
"One of the battles that continues to this day revolves around 'Who is the final word on international law inside the executive branch?' In the first term of the Bush administration there got to be a squabble between the State Department under Will Taft and the Office of Legal Counsel [at DOJ] on the interpretation of the Geneva Conventions, and the OLC finally decided that rather than try to convince the Legal Adviser's office that they were right, they simply stated that OLC, working for the Attorney General, is the final decider on all legal issues, domestic or foreign. The Legal Adviser's office disagreed with that and felt that the Justice Department was the final word on domestic law issues, but that the Legal Adviser's office was the final word on international law issues. That's an issue that has still not been sorted out. It's a fair point that if the Attorney General is the final arbiter on domestic issues but the Secretary of State is the final arbiter on international issues, what happens if there happens to be a disagreement? Who's the decider? There continues to be some tension between the Office of Legal Counsel and the Office of the Legal Adviser on who has the final word on the interpretation of treaties and international-law questions. "
IF YOU COULD IDENTIFY ONE LESSON ABOVE ALL OTHERS THAT YOU LEARNED FROM YOUR YEARS IN THE BUSH ADMINISTRATION, WHAT WOULD IT BE?
"I'll cheat a little bit and say two things. One lesson is that international law is not a terribly popular or respected subject in the United States, that there is an ambivalence even in our government and certainly in our Congress and amongst the American people about the value and importance of international law. This can make it very difficult for the Legal Adviser. Even at senior levels in the other departments--the Justice Department, the Defense Department, or inside the White House, and certainly inside our Congress--there is a lack of understanding about why we enter into treaties and why international law is important. It has become very easy in this country to suggest that international law and treaties and tribunals are threats to American sovereignty and that we are an independent country that answers to no one and that even reaching agreements with other countries are things that threaten our sovereignty. So the lesson I learned was that we need to continue to do a lot of education. I was really frustrated by the number of people in our government who do not see the value of certain international agreements, who think these are things we do to be nice to other countries and fail to see that we enter into these essentially because they are in our interest to do so, that we are getting other countries to do things that they otherwise wouldn't agree to do."
"My other lesson is that there are many voices in the U.S. government and the Legal Adviser doesn't always get what the Legal Adviser wants. While one may be the final arbiter on international law, that's not always the end of the story."