Ben observed last week that in the midst of the most significant war powers debate of this Presidency, many of the top national security legal positions in the Administration remain unfilled. So who is minding the store? Fortunately, some very highly qualified and experienced lawyers, all of whom are currently working around the clock.
At DoD, the GC position has been vacant since last December, when the highly regarded Jeh Johnson stepped down. Since that time, Principal Deputy General Counsel Robert Taylor has been Acting GC. A DoD veteran, Taylor had served in the Clinton Administration as Deputy General Counsel for Environment and Acquisitions.
After a long delay, the current CIA General Counsel, Stephen Preston, was nominated in May to be DoD General Counsel. He had his confirmation hearing in July and is likely to be confirmed in the next several weeks. Preston is well-qualified to take over at DoD; he had previously served as Principal Deputy GC during the Clinton Administration. Meanwhile, he continues to serve as CIA GC. No word yet on a successor at CIA.
At State, where the Legal Adviser has the unenviable role of developing and defending the international law basis for the use of force, the position has been vacant for eight months, since Harold Koh left in January. President Obama had nominated former NSC Legal Adviser Avril Haines to succeed Harold, but then withdrew her nomination and appointed her Deputy Director of the CIA. The President has not nominated a replacement for this key position as the senior international lawyer in the Administration. In the interim, the Acting Legal Adviser is Mary McLeod, a thirty-year veteran of “L” who previously served as Legal Adviser to the US Mission to the UN under Susan Rice.
Another key position is the Legal Adviser to the Chairman of the Joint Chiefs. That position is held by General Richard Gross, who immediately prior to his appointment served in the highly relevant position as the top lawyer for CENTCOM. Bobby interviewed General Gross for Lawfare earlier this year. As the senior military lawyer in the Administration’s legal team, the Chairman’s lawyer has the lead in reviewing the legality of targets.
Virginia Seitz has been Assistant Attorney General in charge of the Office of Legal Counsel since June 2011. A former Rhodes Scholar, she is the key voice on the President’s constitutional powers and the War Powers Resolution. She would be responsible for preparing any opinion on the President’s constitutional authority to use force in Syria in the absence of a new AUMF.
Bob Litt has served as the General Counsel for the Director of National Intelligence since 2009 and is currently the point man for the NSA crises. In the Clinton Administration, he had served as the Principal Associate Deputy Attorney General in the Justice Department under Eric Holder.
The hardest-working but least-known member of the Administration’s national security legal team is NSC Legal Adviser and Deputy Counsel to the President Brian Egan, who replaced Avril Haines in July. The NSC Legal Adviser works 16-18 hour days, seven days a week. The NSC Legal Adviser (a position I held from 2001-2005 during the commencement of the Afghan and Iraq Wars) coordinates national security legal processes (including the preparation of war powers reports), serves as the national security lawyer for the President and the National Security Adviser, and is often the only staff lawyer to attend NSC meetings (see photo below from last week’s NSC meeting on Syria, with Brian seated on the “back bench” taking notes). Brian also has a wealth of experience. Like Avril Haines before him, he had previously served as Deputy NSC Legal Adviser and before that as a lawyer in the Legal Adviser’s office at State.
Although the White House has been inexplicably slow in making national security law appointments in its second term, fortunately the team that remains or is serving in acting positions is highly qualified. President Obama and his NSC Principals may not necessarily listen to their lawyers, but at least they are getting good advice.