A new collaboration between HLS and Brookings takes on security issues
By Katie Bacon
The connection between Harvard Law School and the policy world of Washington, D.C., has historically been strong, with some faculty taking leave to work in Washington and others coming to teach at HLS after working in government first. But this fall it was bolstered and formalized by the inauguration of the Harvard Law School-Brookings Project on Law and Security—a collaboration that seeks to pair the academic expertise of HLS professors on issues of national and international security with the policy expertise and access of the Brookings Institution in D.C. The project—which was launched in September with an inaugural conference —is directed by HLS Professor Gabriella Blum LL.M. ’01 S.J.D. ’03 and Benjamin Wittes, a senior fellow in governance studies at Brookings. They envision that most of its work will be written, whether blog posts, op-eds, law review articles, papers, reports or books, all geared toward shaping policy in the many essential areas where law and security intersect.
The project will also serve as a hub for some existing enterprises, including the student-run Harvard National Security Journal and the influential national security blog Lawfare (see below), founded by Wittes, Goldsmith (who shaped—and challenged—legal policy in the early years of the war on terror, as the director of the Department of Justice’s Office of Legal Counsel) and Robert Chesney ’97 (a professor at the University of Texas School of Law who runs a listserv on developments in national security law).
For both Blum and Wittes, the project is a natural melding of each institution’s strengths. As Wittes explains it: “The project is designed to combine the forces of two organizations that have very deep capacity in areas of law and security. HLS has unparalleled academic resources and a lot of people with very granular experience in a diverse array of law and security issues. Brookings speaks about these issues in a way that the policy community is very responsive to.” Blum, too, sees the project as an effective means of channeling the intellectual energy at the law school toward the challenging security questions the country faces. “I think it’s safe to say that HLS has the largest group of academics in the country with expertise and interest in this field,” she says, pointing to Philip Heymann ’60 as one of the first legal academics to study the issue of terrorism, years before 9/11; to Jack Goldsmith for his role making legal policy in government; to Adrian Vermeule ’93 for his work on constitutional and institutional design, including in national security; and to Yochai Benkler ’94, Jonathan Zittrain ’95 and Lawrence Lessig, who examine aspects of cyberlaw. Blum, a native of Israel, brings her own experience advising the Israel Defense Forces on counterterrorism.
More than a dozen other faculty are associated with the project, including professors like Tyler Giannini, who studies human rights issues, and Noah Feldman, who looks at law’s intersection with religion. The mix reflects the many fields that overlap with law and security, and the scope of topics the project will examine. On these types of issues, Blum argues, one can’t think about things narrowly. Famine in Somalia ties in with piracy on the high seas and the activities of Al Shabab; new technologies lead to new ways for terrorist groups to finance themselves; weapons proliferate through transnational crime networks. “When you look at it this way,” Blum says, “you understand you need experience in constitutional law, in foreign relations, in criminal law, in human rights law, in religion and in technology. And you realize that the HLS faculty can contribute to this discussion in the most comprehensive way possible.”
The project’s emphasis, Wittes says, will be on examining looming security issues in a nonideological way. “There is no program devoted to the single-minded production of nonideological analytic work with an eye toward it being useful to policymakers in this intellectual space,” he says. “This program won’t do endless events talking about interrogation techniques—it’s going to be looking at future issues.” One of the first issues it will take on is the future of weaponry, assembling a group of experts to examine and report on the implications of everything from drones to nanobots, or tiny robots with surveillance and perhaps lethal capacity. “This is not sci-fi,” says Blum. “Once you have this technology, you can’t control it and you can’t contain it—it’s going to be available to the public. What does it do to society when it’s surrounded by these weapons? What are the strategic implications and the potential uses and misuses?”
In terms of getting the project off the ground, Blum and Wittes give a good deal of credit to Dean Martha Minow, for her enthusiasm and support for the idea. “She made this happen with some initial support, and now it’s up to us,” says Blum. But they also give credit to students, who, according to Blum, repeatedly expressed the desire for more ways to be involved in work on security issues. “The students were the real entrepreneurs of this project; they have unparalleled capacity and interest to explore timely questions of national security.”
One of the first tasks will involve the Harvard National Security Research Committee, a student-run group that takes on projects for academics and practitioners examining the legal dimensions of national security issues. The committee will collaborate on the maintenance and expansion of a Brookings paper, “The Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmaking” by Wittes, Chesney and Larkin Reynolds ’10, which has become an online living document that will be updated as detention law evolves through court decisions. The group’s director, Miranda Dugi ’12, says: “Ben and Bobby [Chesney] have been very open to brainstorming what we want our role to be; they have been very responsive to our questions. I think it will be really fruitful, and hopefully it will mean that there’s a broader audience for the things we’ve been working on.” For the Harvard National Security Journal, being linked with the HLS-Brookings project could widen the journal’s readership and the pool of people who contribute essays. Brian Itami ’12, the print executive editor of the journal, also cites the more direct connection to the D.C. policy world that the HLS-Brookings association will provide. “As someone who hopes to practice in the area of national security law, I can’t think of a better opportunity to tie in the academic work that goes on here with what goes on in D.C.,” he says.
Strengthening the connection between theoretical work on issues of security and the policy work going on in Washington is especially important these days, according to Michael Chertoff ’78, secretary of Homeland Security under President George W. Bush and now senior of counsel at Covington & Burling and founder of a risk management consulting firm called the Chertoff Group: “The legal architecture for a lot of what we do in the security space is built around a lot of concepts and rules and statutes that were developed in the 20th century. We are now facing a totally different global threat picture and totally different technologies and issues. We try to adapt to that in an ad hoc way, but having systematic thoughts on this would be helpful if you’re going to rebuild this architecture for the 21st century. There are some great minds at Harvard,” he continues. “Opening the aperture through which they can be participating in things in D.C. makes sense.”
All’s Fair in Lawfare
With contributors from all sides, the new blog is essential reading for leading thinkers on law and security
A little over a year ago, HLS Professor Jack Goldsmith, Benjamin Wittes and Robert Chesney ’97 decided almost on a whim to put their collective experience and expertise in law and security together. They launched Lawfare, a blog with op-ed-style postings on anything from Guantánamo habeas litigation to targeted killings to cybersecurity—essentially any subject where the legal system rubbed up against national security.
Though the site made its debut with little planning or forethought, it almost immediately became de rigueur for people in the field of national security law, including judges, civil-liberties activists, journalists, academics, and people on Capitol Hill and in the military and intelligence communities. “Its readership is pretty small but pretty darn influential on the galactic scheme of things,” says Paul Rosenzweig, who was deputy assistant secretary for policy at the Department of Homeland Security under George W. Bush and now teaches cybersecurity law and policy at George Washington University and runs Red Branch, a strategic consulting firm focused on privacy and security issues.
For an example of the type of reader and contributor Lawfare draws, Rosenzweig points to a series of five posts by Mark Martins ’90, an Army brigadier general, about the military’s efforts to build the rule of law in Afghanistan. “It’s talking about things that I think are very important at a good level of sophistication and among people who may be able to actually do something about it,” Rosenzweig says.
Perhaps even more important, Lawfare has become that rare place where people from all sides can come to discuss thorny issues in a civil way. “The blog promotes a healthy discussion on issues of intense interest. You can’t have a forum for discussion of these serious issues if everyone’s shooting at one another,” says David Remes ’79, a human rights lawyer who represents Guantánamo detainees in habeas corpus cases.
For its founders, both the impact of Lawfare and the intellectual rewards of writing a blog were unanticipated. Goldsmith says that he was initially quite hesitant about doing Lawfare, because he saw blogging as a “less rigorous discipline and form of scholarship than the kind I valued.” But now he’s come to see it as an “important channel for trying out ideas and putting them out in the world.” Chesney shared that hesitation but says he eventually realized that blogging—unlike writing law review articles or books—allowed the type of speedy response necessary to potentially shape fast-moving national-security debates: “These issues were churning so quickly that the opportunity to influence the debate was often missed. If you want your legal analysis to have an impact, you have to be in that space.” Wittes, for his part, says, “There’s an immediacy of the relationship to a particularly devoted and important reader that’s like nothing I’ve ever experienced. It’s become a forum for significant debate among people for whom no other such forums exist.”