By Alyssa Greenstein
The Section on National Security Law provides for the professional development and exchange of information among law school faculty members interested in and involved with the laws governing national security.
Chair: Emily Berman, University of Houston Law Center
Chair-Elect: Milena Sterio, Cleveland-Marshall College of Law at Cleveland State University
Emily Berman: National security law is an area where, unlike some areas of law, there is not an annual gathering for everyone who works in the field to come together on a regular basis. For national security law, AALS is the best opportunity to network with, get feedback from, and build relationships with other people in the field. That originally attracted me to the section and its programs. The next logical step after that seemed to be getting involved with the leadership.
Milena Sterio: I had published several articles in the field of National Security Law and was looking for the opportunity to present my work as well as meet other scholars in this area of the law. I thus joined the National Security Law section. After a few years of attending the section’s programs, I decided to join the leadership by becoming treasurer, then secretary, then chair-elect.
EB: We have a chair, a chair-elect, a treasurer, and an executive committee that fluctuates in number. Whoever is interested in getting involved is welcome on the executive committee. For the most part during the year, the section chair and chair-elect tend to do the bulk of the planning for the Annual Meeting, including soliciting papers and devising the programming. Members have a relatively limited role until they are in the chair and chair-elect position. Then it is much more involved.
MS: The section has traditionally organized a works-in-progress session at the AALS, and over the years members of the executive committee or treasurer/secretary have volunteered to help organize this session.
EB: It is a really diverse group. One of the interesting and challenging things about the field of national security law is that it intersects with lots of other fields. The programming of the section from year to year tends to reflect the specific interests of whoever happens to be in the leadership in that year. The range that it could encompass is very broad. A lot of people focus on issues of executive power and constitutional law. There are also people who focus on criminal law, immigration law, or data privacy law and surveillance. There are a broad range of issues brought to the table by our members.
EB: Outside the Annual Meeting, we have a discussion list, which is one mode of section communication. We tend to communicate a lot both on that discussion list and through other informal communications with other people in the section sharing resources, developments, and calls for papers. The bulk of the section’s activity tends to be focused on the Annual Meeting. There are sometimes events that aren’t officially AALS National Security Law section events, but largely the same people attend these events, so our members have a chance to interact there.
MS: From time to time, the leadership members will participate in an email discussion or conference call to select topics for the next year’s meeting, discuss other section issues, etc.
EB: We are involved with a few different programs for the upcoming Annual Meeting. Our primary program is about the national security implications of COVID-19. Earlier in the summer, the Journal of National Security Law and Policy at Georgetown decided to do a special issue on COVID-related national security issues. I contributed to that and decided this would also be a great topic for our program at the Annual Meeting. People that contributed to that issue of the Journal will be on the panel. We will be able to provide updates as to where things stand and how things have changed since the summer.
We also have our works-in-progress panel, which we have done for about five years. We have a call for papers, then select three or four papers or drafts that people will present at the conference. For that event, we always reserve at least a couple spots for junior scholars. It is one of the few national security-focused places for junior scholars to get feedback on their work.
We are co-sponsoring a couple other programs. We have one with the section on Legal History about white supremacist violence and terrorism throughout American history. We also have one with the section on Technology, Law, and Legal Education about the use of technology for modern surveillance-related issues and in national security and policing.
EB: The best way to get involved is usually through the programming at the Annual Meeting. After our primary program, we have our section business meeting where we settle on the section officers for that year and add people who are interested to the executive committee. That is a great place to start, but people should feel free to reach out to section leadership at any time to express their interest. Information about the section is always available on the AALS website.
Our leadership tends to work a little bit like a conveyor belt. You join the executive committee, then move up through treasurer, then chair-elect, and then chair. It’s is a progression, so all you have to do is get yourself in line.
MS: During the pandemic, we are not meeting in person. I would encourage all those interested in joining the section or becoming part of the leadership team to email Emily or I with their expressed interest.
EB: I got interested in national security law when I was in law school, which was from 2002 to 2005. There was a lot going on in national security law in the immediate post-9/11 world. It felt like a very important area of law at the time, and it was interesting because it was changing so quickly. The post-9/11 national security threat was so different from traditional ones in the past, and those differences were creating challenges for the law which were quite interesting intellectual puzzles. I took a couple classes about national security law throughout law school, and when I graduated, I went to work at the Liberty and National Security Project at the Brennan Center for Justice. It was first a fellowship, then I was hired as counsel in that program where we focused on the civil liberties implications of national security policy. There I developed a lot more depth of expertise in various issues related to national security law.
MS: I am an international law scholar first and foremost. After I became a law professor in 2006, I started working in different subfields of international law. About ten years ago, I became interested in the use of drones and the legal implications surrounding the use of drones. I thus published several articles and participated in several conferences on this topic. In addition, I have written and researched about Guantanamo, enhanced interrogation techniques, use of force issues as they relate to national security law, etc. I have found that international law and national security law issues often intersect.
EB: It is always changing. It is certainly becoming a broader field. Maryam Jamshidi at University of Florida and I recently posted a letter urging people to recognize the ways in which the field has changed over the years, both substantively and also with respect to those who are interested in it. Historically, the people in national security law academia are largely drawn from former government officials, former military officials, and people that worked on the national security apparatus in some way. Since 9/11, the policies of the U.S. government have inspired a different kind of interest in these areas. For example, people who are part of disproportionately affected minority communities or people like me who come at it from a civil libertarian perspective have gained interest in this area.
The academy itself has diversified, though yet not enough. Things like critical perspectives and the way that national security intersects with areas that weren’t traditionally considered to intersect in the past, like public health or climate or economics, have become part of the conversation. The scholarship and membership of the academy has gotten much more diverse, both with respect to the ideas and the people.
Students in law school now do not really remember the world prior to 9/11. That has also been a big change. For a long time, everyone recognized that there was pre-9/11, and then things changed post-9/11. This generation of law students do not realize how things changed. Trying to convey that message to them has also become more of a challenge. We have to encourage them to recognize that this is not the way we have always thought about national security, and it doesn’t need to be the way to think about it now. It may or may not be the best way to think about it. Asking all of those questions that law professors like to ask that question your presumptions are more of a challenge than it used to be.
Like every area of law, technological changes have had broad impact. Artificial intelligence and big data have had an impact on the national security world. Every year, there are significant changes to the syllabus because the law keeps changing. It’s part of what makes teaching national security law both fun and challenging.
MS: National security law has certainly changed in light of new technology. Several decades ago, we did not have drones. Now we do. We also have more potent weapons. Post 9/11, we have witnessed an expansion of aggressive national security policies, such as the use of force through drone strikes against non-state actors in Afghanistan, Pakistan, Yemen, etc.; enhanced interrogation techniques and prolonged detention practices (Guantanamo); different foreign policy in the Middle East, and so on. In other words, the field of national security law has changed over the past 20 years and it continues to evolve.
MS: President Trump has been an unconventional leader. He has rebuked the advice and guidance of our own intelligence agencies. For example, although all of our intelligence agencies determined that Russia had meddled in the 2016 election, President Trump brushed this aside. This clearly has national security implications. This type of lack of trust in the intelligence community has continued throughout the last four year. Another example would be the withdrawal of troops in Syria – against the advice of many in the State Department as well as in the intelligence community. I think that most of this will change with the new administration, which is likely to adopt a more traditional model of the American presidency, where the president works closely with the intelligence community and with various government offices and departments to craft the best national security policy for the United States.
EB: Norms have changed or been challenged across the government. The Department of Homeland Security has not had a Senate-confirmed director for years now, and you can see the way that has politicized that department in its involvement with the protests going on over the summer in Portland and elsewhere.
He pushes the edge of what the law permits in terms of both policy and a broad interpretation of the law. For example, in terms of policy, he decided to pull many of our troops out of Syria even though we have allies there that are relying on us to remain. In terms of broad interpretation of the law, he diverted money to pay for the border wall that Congress had not authorized, and he used emergency powers that may not actually have been meant to authorize that kind of thing in order to do it. And all of that came long before his unprecedented post-election personnel changes at the highest levels of the Pentagon and in the Department of Homeland Security as well.
The good part about all of this is that there is consensus among people who might not otherwise agree on most things on some changes to the law that will address these concerns. I think that reinstating some norms and traditions will be one of President-elect Biden’s priorities when he gets into office. When the problems are statutory, this becomes more of a challenge because you need Congress to make those changes. I would not be surprised if there were efforts to codify some of the things we thought of as rules but were actually merely norms. I actually co-edited a series of essays designed to identify some of those most in need of attention.
I think a lot of people in the field as well as many Americans are looking forward to getting back to the kinds of questions and issues that we were used to prior to four years ago. We are looking forward to not having to confront a crisis every week. We are looking forward to getting back to debating the people that we normally disagree with. We are all excited to not have appalling policies and statements put out that do not seem to have the best interest of the country in mind.