On National Security Law Scholarship: A Reply to Huq's Critique

By Robert Chesney, Steve Vladeck
Friday, September 16, 2016, 9:35 AM

On Tuesday, our friend and colleague Aziz Huq posted to ACSblog a fairly critical assessment of national security law scholarship—and, indeed, national security law as an academic discipline, writ large. As Aziz wrote, “it is hard to think of any other field of serious academic inquiry quite so dominated by participants in the activity under study, relying on necessarily partial experience of their own, and largely going without rigorous, empirical data about the effects of various policy choices.” We both were rather surprised by Aziz’s take—largely because we have a rather different (and far more optimistic) view of both our field as a whole and its contemporary scholarship, in particular.

Aziz’s descriptive account unfolds in three steps, the first two descriptive and the last normative.

First, he asserts that there is a trend in the field of national security-relevant legal scholarship in which faculty with executive branch experience draw on that experience to make untestable claims about the efficacy (or not) of intra-executive constraint mechanisms. So it was at a recent workshop he attended, we are told, and so it is in a number of other recent articles.

Second, he asserts that this mode of scholarship is becoming dominant, “displacing case law and empirical data as standard foundations of national security scholarship.”

Third, he asserts that this trend is pernicious, both because the autobiographical focus on intra-executive constraints is itself a weak form of scholarship and because more desirable forms are left untended in what seems to be a zero-sum game.

Summing up, Aziz argues that “[t]he importance of a richer understanding of the historical, sociological and doctrinal contexts of national security policy,” which, he implies, is missing from contemporary scholarship in the field, “is heightened to the extent that the [contemporary understanding of internal] separation of powers are unlikely to survive the transition” to the next generation of controversies.

We disagree with most of these points. In our view, the field of national security-related legal scholarship is broad and diverse in precisely the ways that Aziz desires. The volume of doctrinal pieces exploring primary rules of conduct—a category Aziz expresses specific concern about—is so vast that none of us can possibly read it all, all the more so as an increasing array of issues in our field have made their way into courts. Indeed, one of us, having just finished work on a pair of casebooks in the field, can attest to just how much good, interesting, and diverse scholarship there was to go through in updating books last published in 2011. The array of topics receiving both doctrinal and theoretical scrutiny ranges widely, from surveillance to no-fly-lists to material support prosecutions to homeland security to drone strikes to computer network operations, not to mention the pieces that address broader concerns such as rule of law “tropes” in national security, the shadow of national security litigation on executive branch practice, and the ever-present tension between the military and criminal law enforcement paradigms. The law reviews are filled with such examples, even without accounting for high-impact specialty journals like the peer-reviewed Journal of National Security Law & Policy (of which we are both senior editors).

Of course, we certainly agree it would be great to have more empirical work in our field. (The structural, secrecy-driven impediments to such work are not always insurmountable, though they are unusually problematic, and we do not quibble with Aziz’s call for more effort along these lines. But we cannot agree that the fault for any shortfall on that dimension can be attributed in whole or even in the slightest part to those scholars who leverage their executive branch experience in their scholarship.

Far from being problematic, we view the recent spate of pieces exploring intra-executive constraints as a very welcome addition to the tapestry of national security law scholarship. It’s a feature, not a bug. But more importantly, it is a relatively small slice of the larger body of scholarship pouring forth in this field every year. It nicely fills a gap in that larger body’s coverage, but it’s no more than that.

We also disagree with the broader suggestion that the field has come to be dominated by scholars whose identity is significantly rooted in executive branch experience. To be sure, there are some very influential and impressive folks who fit that description. But then there are loads of others who don’t. We also are troubled by the suggestion that there is something particularly unusual about former practitioners playing a significant role in our field, as compared to the situation in other fields. That seems wrong descriptively, and insofar as it smuggles in a normative criticism we disagree on that dimension as well. Just consider criminal law, where scholars routinely have substantial experience both prosecuting and defending cases. Does that somehow undermine the quality and diversity of scholarship in the field? Quite to the contrary, it seems to us. National security law is much the same way. Yes, there are former executive branch lawyers of various kinds who write in this field. There also are plenty of folks whose backgrounds instead involve NGO and pro bono work flowing from a human rights or civil liberties perspective. Others have backgrounds that do not connect directly with the topic. It is pluralistic, perhaps much more so than some other fields. It is a healthy and diverse ecosystem, and we see no persuasive evidence that it has become unbalanced in favor of executive perspectives.

We close by noting that we do agree, very much, with Aziz’s call for ensuring that the field sprouts with work providing “a richer understanding of the historical, sociological and doctrinal contexts of national security policy.” Right on. But we couldn’t disagree more with the suggestion that the field has failed to attend to such matters. It’s a broad and increasingly diverse field, packed with exactly this sort of work. Scholarship on intra-executive constraints are a fine and useful addition to the field, but no cause for systematic alarm even if some particular examples of such work trade too much, in some folks’ view, on personal experience.