 I have the honor of introducing our next speaker, Mary DeRosa. Mary is currently a distinguished visitor from practice at the Georgetown University Law Center. She came to Georgetown in 2011 after years of distinguished service in government, including two stents as legal advisor to the National Security Council. She served in this role during the latter part of the Clinton administration during the first two years of the Obama administration, at which time she also served as Deputy White House Counsel, Deputy Assistant to the President. She also served previously as Chief Counsel for National Security for the Senate Judiciary Committee. I had the privilege of working with Mary during the first months of the Obama administration on one of the most difficult issues the new administration was confronting, what to do with the Guantanamo detention facility. In my capacity as Ambassador-at-Lords for war crimes issues, I had lead responsibility during the last three years of the Bush administration and the early part of the Obama administration for the diplomatic negotiations necessary to transfer prisoners out of Guantanamo. Already during the transition between the administrations, Mary was very engaged on this issue. In my first discussions with her about it took place during that time. Once she became NSC legal advisor, I continued to work closely with her and I came away very impressed by her commitment to resolving a vexing national security challenge in a way that was incredibly thoughtful and ethical but which was also very pragmatic, showing that the two are not incompatible. A theme that is in keeping with our focus today, the centrality of rule of law in the fight against terrorism. Speaking from that perspective and from her experience at the Center of Policy Formulation and Decision Making, Mary is uniquely positioned to speak to us today on the challenges that lie ahead for the next president. So it's with great pleasure that I introduce Mary DeRussell. Thank you. Thank you so much, Clint. And thanks to all of our hosts, New America and Arizona State University and the McCain Institute for inviting me here. And I thought while you were chewing, I would talk a little about focus instead, some observations from the sort of being inside and practicing in this area and observing the real challenges for a president who wants to uphold the rule of law. Rather than talk about some of the substantive issues, I thought I'd talk about some of the practical and institutional challenges that any administration faces, but particularly a new one. So obviously we're in the last weeks of a presidential election and there are two very different scenarios about how that will come out. I'm going to only talk about the scenario in which we have a president who actually cares about the rule of law, in part because I'm not emotionally equipped to engage the other scenario but also because there's a lot less to say if you have a president that doesn't care or at least it's a very, very different conversation. But I don't think that's what's going to happen. I think we're going to elect a president who is very committed to advancing the rule of law domestically and internationally. And that commitment is the first step and the most in a very important step, but no matter how much she cares and no matter how committed, it's not an easy task. And so I'll talk a little bit about what some of the challenges are that a new president will face. So there's a new president. The president cares about exercising power with regard for legal constraints, following the law, considering ourselves to be bound by the law. She will believe or say she believes that we gain more in credibility and legitimacy by doing this, by considering ourselves constrained than we lose in flexibility. But what does that even mean in following the law? It's not always clear or it often isn't clear what the law is and what it requires. What if, as has so often been the case in the past 15 years, any threats from international terrorism, which is the subject of this conference today and other areas cyber comes to mind, just don't map all that well onto the existing law. What does this respect for rule of law require under those circumstances? And in that case, it requires of the lawyers and of the administration that they act honestly and in good faith to figure out what the law means in this new area. I have two early, excuse me, post 9-11 issues that I'm going to use as examples to give a sense of what I'm talking about or how these issues arise. We were attacked on 9-11, as everyone knows, by a non-state actor, Al-Qaeda. The international laws relating to force and conflict were written with state actors in mind. So if you look, do a literal reading of the UN Charter and related law, you could come away, and many, many commentators did and have, with the view that a non-state actor like Al-Qaeda cannot engage in an armed attack in a legal sense of that term. The implications of that are very, are quite significant because if you can't engage, again, in the legal sense of the term, if you can't engage in an armed attack, we the U.S. cannot respond in self-defense. And if you accept that view, then the entire legal framework related to self-defense and armed conflict is unavailable, would have been unavailable to the U.S. in response to Al-Qaeda's attacks. The U.S., as we all know, rejected this view. We viewed ourselves and we continue to view ourselves to be within the framework, the armed conflict framework and subject to international humanitarian law. So was this a cynical manipulation of international law? Did we fail to uphold the law by reinterpreting it to achieve the result we wanted? Obviously, I do not believe that we did. The technical or literal, in that case, interpretation of the provisions under the circumstances we faced would have made no sense. It would lead to a conclusion that is inconsistent with the purposes of those laws. That law should respond to experience and we took the position, the U.S. government took the position that the law could and did respond to this new threat. We were criticized and some continue to criticize that position, but that does not mean, of course, that we were wrong. But another example from the same period shows what I believe to be the flip side of that analysis, and that was the legal conclusion in early 2002 about the applicability of Geneva Conventions to our treatment of Al-Qaeda or Taliban detainees. The lawyers in that case that the Department of Justice lawyers concluded that, I mean this is simplifying the legal discussion in both of these cases, but too because the point I'm making is not the legal one, but they concluded that neither the third or fourth Geneva Conventions applied to the detainees and therefore they said that the U.S. was not bound by the conventions at all in its treatment of detainees. It was free therefore as a legal matter to ignore restrictions and processes in those conventions. Unlike the first example I used, I don't believe that that was a fair, credible analysis of the law in applying it to a new threat. When your legal analysis, very importantly, leads you to a conclusion that no law applies in a situation that's typically highly regulated by law. That should be a very big red flag and I agree with the comments that Hina Shamsi made just a few minutes ago that although you can use substitute and policy constraints are important but they are not an adequate substitute for law in these areas. So there I believe that interpretation was inconsistent with the spirit of the conventions and was in fact an attempt to escape restrictions. So I mentioned these examples again not to relitigate them. These issues have been resolved but there are many issues like that that have come up for the current president and that will come up for the next one in the counterterrorism area and others. And the new administration and the new president and the new lawyers have to be very aware of how they are going to think very hard about how do they approach these new and difficult questions when they come up. So I want to raise two specific institutional challenges that make this task harder, the task that I just described, the task of developing the legal analysis in this area, harder in the national security area than it might otherwise be. First, because of the nature of national security decisions, how they are made, the sensitivity of those decisions, there are as a practical matter considerably fewer formal and informal external checks on the lawyers who practice in this area, the lawyers in the government who practice in this area. So that's the first issue that I'm going to address is how you, the quality control, how do you maintain quality control in this very important legal area. When you have relatively fewer, less guidance and fewer external checks on the lawyers. Second, I want to talk about the failure of Congress to engage in the past several years on more powers issues and use of force issues and the strains that that places on separation of powers and related rule of law and the rule of law challenges that it raises. So the first topic, good quality legal advice is essential obviously to protecting the rule of law. That requires good lawyers and we have very, very good lawyers in this field. But good lawyers are critical but not enough and many of the things that provide sort of quality control, informal and formal quality control mechanisms in other legal fields don't operate the same way for lawyers in the national security world. U.S. courts are reluctant to become involved in national security legal matters relying on a number of threshold doctrines, political questions, doctrine standing, etc. To avoid for, you know, and these, the doctrines, I'm not saying that this is, that they are incorrect to do this but the result is that they avoid review in many, many sensitive national security matters. Legal analysis is less available to the public for comment and criticism. So that informal check that most lawyers have in most areas of law is less available. Members of Congress have less insight generally speaking into the legal advice in this area and when they do they are often constrained in what they can say about it publicly. And beyond that the sensitivity of national security decisions risks even internally limiting the number of people who can or do deliberate on these issues. And so all of that inevitably just as a matter of human nature there's nothing that inspires you or focuses you like knowing somebody is going to be looking over your shoulder and judging what you're doing. And there simply is less of that in the national security area. And that is on top of the fact that these are some of the, these are issues that relate to decisions, policy operational decisions with the highest of stakes often and so the pressures are tremendous. So what does a new administration do to address this not very concrete but very real issue with national security legal decision making? I would suggest that there are some processes and trends in the current administration that the next administration would do very well to continue. First and this is, this is a little in the weeds I recognize but it's a pet issue of mine and I actually, I think it's very important and that is the lawyers group. So what is the lawyers group? It's a group of lawyers cleverly and it is a group within the national security executive branch legal decision making. It's the senior lawyers from the State Department, the Department of Justice, Office of Legal Counsel, the Defense Department, both the General Counsel and the Counsel to the Chairman of the Joint Chiefs, Counsel to the Director of National Intelligence, the CIA General Counsel and the NSC Legal Advisor, which is the role I played who coordinates this group. They meet regularly more than weekly in person or by civets video conference and they, so this is the group that deliberates on and develops in the current administration. The legal advice for the President on most of the serious high level issues, legal issues that the President and his senior advisors are considering. So this group, this entity existed before but it has been in this administration, so for almost eight years now, the key forum for deliberation and the lawyers work together the dynamics of the group. The lawyers work together to reach the right answers. It promotes quality both because it ensures that a diversity of opinion is represented in the legal decisions and also for a lot of just human reasons that people, you know, the dynamics and you know, you come in, it improves the quality of the discussion because everybody wants to make sure that their peers are, you know, that they are impressing their peers. I mean that's a simplistic way of putting it. But in any event, and it also provides importantly a buffer, the group operates to provide a buffer of sorts to increase independence of legal decision making. So it's not very well known and it is the kind of process that I think it could go away tomorrow if the new lawyers and new administration don't commit to it, but I hope they will. So that's my little pet issue, although I do think an important one. Another important step, and we've heard very important for a number of reasons, but specifically on this legal issue, is the push for transparency in particular about legal analysis. So one way to ensure that more people are, as I said, you know, the informal check of public comment and criticism about legal advice. One way to ensure that is to make sure more legal advice is public even in this area where every instinct is not to make things public. Not for self-protective reasons, for valid national security reasons, but it is the more that can be out in the public the healthier it is. So the Obama administration has done this in a number of ways, in particular about legal advice. It's declassified some legal opinions. There have been a series of senior officials and lawyers who have given speeches on legal positions, particularly use of force positions and international, different surveillance law, different international law issues, cyber issues. And I cannot emphasize enough what a pain it is to work through and develop these speeches, and everybody is incredibly busy. And so, and there appear sometimes when you're trying to persuade people that a speech needs to happen, it's very, very easy to see the downsides in the immediate sense and very hard to see the upsides. Often when you're developing legal advice on a day-to-day basis, you're answering the questions that are before you, but if somebody is going to give a speech, you have to think about the questions you haven't dealt with and think about how they fit in and think about the impact of developing the sort of broader legal structure is going to be. And that is hard and that is irritating, but it is incredibly healthy. So this administration has done, I think, and obviously I'm not its harshest critic, but I think it's done a terrific job at pushing on those things. And because it is so difficult, I think that is, again, it is a lesson, I believe, that this administration has learned over the course of the seven years that I would hope would be that the new administration would pick up on. I'll mention also the PPG and the transparency on targeting policy and other kind of policy, transparency initiatives, a real push by the intelligence community or by the DNI in the intelligence community post-Snowden. These are all very healthy and very healthy in particular for the lawyers who are developing legal advice in this area. As I said, it's not easy. It's a classic example of something that has indirect long-term benefits and very direct short-term downsides. You almost never come out with a speech or a legal position on something in here. Thank you. That's great. Now I get it. And instead you hear, well, what about this and what about this and what about this? And you didn't answer this. And I don't agree with this. I mean, you know, if you're out there with your legal views, you're going to get substantive criticisms. And that's super irritating. But it's really important. And it is very important medicine for the lawyers in this area. And it is because it's hard and because it is against the natural instinct of most national security policy makers and personnel, there's going to have to be a real decision and an effort to push in the new administration to continue that. So one, how I'm doing on time, one final challenge that I wanted to mention for the new president is obvious challenge, not something that only I have noticed. And its solution is extremely intractable. But that is the disinterest in the United States Congress currently or in recent years to play its constitutional role on war powers and use of force issues. Use of force overseas is the decision to use force overseas has significant consequences. Obviously, it's one of the most momentous, one of the most important decisions that a president and a government can make for the nation, for its citizens. And it is an area where participation of both of the political branches is most needed. But what we have seen in the past several years as the threats have grown more complicated, the solutions have become less clear, the approaches are more fraught. There is, for a variety of reasons, the United States Congress is becoming less and less likely to become involved, particularly in authorizing use of force. And that's not to say Congress isn't interested in these issues or that it ignores these issues. They certainly pay attention. But what they've been reluctant to do over really the course of this administration is to act as a body to authorize or to refuse to authorize, decline to authorize a president's decision. So generally, of course, it is the president who takes the heat for this and for acting without congressional authorization or in some way, you know, inconsistently in the view of many, some people with congressional authorization. And the criticism goes that either the president hasn't sought authorization or the president hasn't sought authorization correctly or convincingly has not exercised sufficient leadership to get Congress to act on these issues. And I'm not saying that those are unfair criticisms. I think that there is, you know, probably blame on both sides and lessons to learn from both sides. But the other side of it that doesn't, I think, get talked about as much is the president can't duck. The president can't. The president has to make policy decisions and operational decisions. And if you're in a situation which has come up on several occasions in this administration where everybody, in Congress, generally everybody's in the same place about a particular use of force or that you're acting in a certain way overseas. But Congress doesn't want to be asked to authorize or doesn't act to, you know, determine whether it will authorize. You have, you know, there's a certain game of chicken on the part of the president who's, you either have to go and you say, you have to authorize this for me or I can't do it. And then if they don't authorize it and everybody still, you know, if they don't act, you know, that is a, that is a, and maybe it's the appropriate, maybe it's the appropriate decision. But it is not without some significant consequences if you have a policy where it's not like they're saying, no, we don't think you should do this. They're saying, we just don't, you know, just don't ask. Or you say, well, I would really like you to authorize this, you, the president. But I don't think you need to, I don't think I legally need your authorization. And then Congress says, well, then why would I do it if you don't need it, you know? So it is, I mean, and I don't mean to suggest by a long shot that everything has, you know, that this administration, I don't think this administration would suggest that everything they have done is exactly right. But it is a problem at least as much of the Congress is making. And so, and this is an area, I mean, if you talk about the current president, where really some of the, some of the most significant criticisms of legal positions that this administration has taken have been in this area. It has been about interpretation of the War Powers Resolution or interpretation of the 2001 AUMF. Interpretations that many believe are strained, some believe are not available, not credible. And so putting aside whether those criticisms are valid, I think it's significant that what the president has done is significant, not again in a sort of defense of the president, but in a, in a how you deal with these as significant as a sort of sign of how you can in difficult situation deal with these situations is, in the end on those issues the president has said, has interpreted a statute, has said, found the authority by interpreting a statute rather than by saying I have the power under the Constitution to take this action on my own. And so, so even, so he's preserved in that a role for Congress and has recognized the authority because if you're interpreting a statute you're saying Congress you could change this, you don't agree with me you could change this. So, so that is, you know, but that's the situation we're in, that's the kind of issues it raises. What does the new president do about this? I have absolutely no idea. It is, I mean, it's, it is important I think to recognize the problem and try early in a new administration, maybe a fresh start, maybe a new set of people involved can be used to change the dynamics. I wish that I were more optimistic about that. But the other thing I would say is dealing with this requires people in the executive branch to some, sometimes to in a way act against your own sort of personal institutional instincts. I know, and I mean I admit that when I was first in the, in the Obama administration and lawyer and sometimes issues would come up or suit, is there a question here should we try to get Congress to raise, you know, revisit the 2001 AUMF. My instinct was like, oh no, why don't we want to get them in our business? That's just going to make things more difficult and more difficult, you know, and it, you know, out there it's harder to control. Normally in a world in which Congress is, is, you know, engaging and defending its own constitutional territory, that's an okay, that's a perfectly okay instinct on the part of the executive branch because Congress is going to push back and it's going to, it's going to work itself out. But that is not an okay instinct in the executive branch in the current climate and, and what I think people need to recognize at the beginning of the new administration is you can't act on those natural instincts and you have to in fact push from the beginning to get Congress to engage on these issues because it's only going to hurt, it's only going to hurt the administration and it's only going to hurt the country and it's only going to hurt the rule of law if you have a situation where, where the president is, is acting without, without the Congress being involved in some of the most difficult issues. So I think I will, I will stop there. I mean, other than to say new, new president, new administration needs to focus. I hope we'll focus very early and thoughtfully on these issues and recognize that just, just wanting deeply caring about, about respecting the rule of law is, is really not enough and you have to, and you have to deal with some of these institutional challenges. So I will stop there and take questions if anybody has them. Okay. Here. Hi, I'm Larry Weiner, ASU College of Law. I'd like to ask you about what you described as your pet interest, this legal group, which I find very intriguing, particularly because of the obvious parallels to private practice, how a private law firm or a private corporation legal department might operate. So within this group, for example, how do you determine who the client is? A particular individual, a governmental department? What about confidentiality? I mean, how, how freely can you even talk amongst yourselves about some of the issues? The public interest. Is the public interest however might be defined to determine, does that go into your deliberations in giving legal advice? I don't know how much you can say about how this group operates, but it's really quite interesting. No, I think it's a great question. And the issue of who is the client for government lawyers in this area and in other areas is always, is it interesting and, you know, philosophical to some degree, you know, but, but it can have, I mean, it can make a difference. And I would say in this group, the client is the, at least the president or the, you know, the policy of that the president and the senior, the National Security Council is pursuing not to say that if it's an elite, you know, that you, I guess the presidency. And the National Security Council as an institution is the client, not the individual agencies. And that is one of the benefits. I mean, certainly people come into this lawyer's group and they represent their, you know, they are part of an administrator, I mean, I'm sorry, an agency or department. And they are, they are representing the views and the interests of that department. But I think one of the positive things about the lawyer's group is that that is, you know, heard and understood, but there is then because of the nature of the work that they have to do tends to fall away. And what, what really drives, and it sounds maybe like I'm being, having a sort of two rosy view of this, but I really do, I have seen this and I, and I do believe it that, that the best legal argument and the legal arguments do tempered by reality. I mean, these are practical people in practical jobs, but, but the law does, does prevail in the discussions and not the, the institutional interests of the particular departments. It's one of the things that is, it is very important that those interests are in there, but not everybody isn't just sort of in their own corner. Public interest absolutely I would say is part of the calculus in, in all, in all of those discussions. So, yes. Yes ma'am, my name is Kambi, but I'm with the Pakistani Spectator and you said that politicians, you use word congressmen, they are constrained by saying something or saying not, not saying certain thing. And my question is, are they constrained by some legal or moral obligation? Are they are constrained by political calculation? For example, I mean, this is a very debatable, because of this election season. Most Republicans believe that Obama doesn't want to use word Islamic terrorism because he doesn't want to irritate his Muslim vote, who majority, as you know, go to Democrat Party, especially nowadays, because other guy is very loose cannon and he is saying every kind of thing what he could say. So, so, because of this Obama's calculation, not even using something that is very factual, given that most of the terrorist event are, are Muslim, so I'm being very careful not to call myself terrorist. But most of the terrorism act was committed by Muslims, so there is nothing wrong to say Islamic terrorism or Muslim extremism. So Obama's very, very, it's, it's that, I mean, it's, he come across as a kind of coward with the Republican standard that he doesn't want to use this word. So, are they constrained by some legal or moral obligation or they are constrained because they don't want to lose their vote bank? Thanks. So, what I was talking about was, was much more mundane and that is the, that this is, the information is classified. Very often information that is shared with the Hill is, is, is classified and unless declassified by the executive branch, it is, they are constrained in speaking about it publicly. They can press it, but that, that is their constraint. So that, that is the point I was making there. Obviously there are any number of political, you know, constraints and incentives for members of Congress and others to, you know, to, when they are speaking, but that was particularly in this area. I was really just talking about the classification issue. Yes. With regard to your last comment about the Hill being constrained to not make public to their constituents anything that the administration says is classified. I wondered if you'd comment on my understanding which is that that's not really true because when we set up the intelligence committees, we put a provision in the resolution creating them that says if a majority of the committee disagrees with the administration based on what we did with the church committee as a co-equal branch, they can, if it goes to the full house or senate and there's a majority vote in a closed session, make it public. And in fact this has been done at least once with regard to the Panama Canal negotiations where they made public things that the administration under President Carter said could not be made public because they were too classified. So my question is one, is that your understanding and two, is that the position of the executive branch now or do they still maintain? For example with regard to the torture report that Congress could not have made the entire report public as opposed to just the introduction? Yes. So I am aware of that process and this is one of many areas where you have differences of legal opinion between executive branch and the legislative branch about authorities. I've worked on the Hill but I'm a creature really of the executive branch. My view is it is, and I think the cases support this, that is the decision to classify is a decision that is a power of the president. But certainly under the congressional process that you talk about, they can in very little limited circumstances have taken that action. You see it very, very seldom and I think in part that is not because there's a concession about the legal or the authority issues. And it's more because as a practical reality the executive branch controls the information and can decide with whom it will share that information. And so there's a concern and members of Congress are responsible people. They don't want to be in a situation where they're releasing information that could be harmful. So I think as a practical matter that comes up very seldom. More often what you see is if a member of Congress thinks they know something that should be declassified, they press the government to declassify. And they might even say publicly there's something I know that I think needs to be declassified. So go tell them to declassify. So it's more that kind of process than the one that you described. Hi, I'm Leanne Howard and I am with the Defense Department but I am not a lawyer. So my question is more on your experience and if and how you look at opportunity costs and risk in some of the counter-terrorism decisions that have passed by you. And specifically in terms of leading opportunities over time that change or the impact of making a decision or not making a decision at a specific point in time. Does that make sense? Could you elaborate on that a little? Sure. So anecdotally if we have a policy that allows us to do something in a certain part of the world but not another part of the world but then the opportunity presents itself in another part of the world. And it's a fleeting opportunity critical to national security but the strict interpretation needs to be reviewed as to if, how and when we could do something. I'm just curious from the legal standpoint, from the NSC standpoint, what is the discussion that takes place with the policy makers in that or even with whom to partner or when to accept or reject a partnership offer. How does the legal office get involved in reviewing those types of gray areas? Thank you. The constraints that you're talking about is a legal one, is a legal analysis as we can do it here and we can't do it there. Then the lawyers would, the lawyers in this area work very fast often. The issues come at you very quickly. You try always to get ahead and think of things that might come up and often that does happen. So the lawyers would tell the policy makers, what is the legal reason for this? And look and try to see if there's a way to do what the operators or policy makers want to do in a way that doesn't have the same legal issues. If it's not a legal issue, if it's a policy guidance and then the lawyers still often or at least in their roles, in their departments, I know in my role as the NSC legal advisor, I would be in that meeting. And so part of my job was not just yes it's legal, no it's not legal, you know, sit back. It was thinking about how you need to make the decision in a way that is going to be a sort of judgment and process and how do you make the decision in a way that is going to be most sustainable. And so you might even give advice, not yes you should do that or no you should not do that if it's a policy matter. Not that lawyers never speak on policy but that's not your central function but a central function is also, I don't know exactly the situation but I can imagine a lawyer saying, look, you know, you have a policy out there that says you can't do that. You need to have, if you're going to change that policy on the fly, you need to explain why you're doing it and go through a process to understand it. And that I think is also a role of the lawyers in this area, not so much the lawyers group that I talked about but in their counseling and advising positions. Maybe one more question. Okay, one more, right here, sorry, I hope I'm, okay. Thank you, it's very interesting actually. Two weeks ago the Congress passed very interesting law, JASTA, Justice Against Sponsors of Tourism, despite the veto by Obama administration. Do you think this bill, by the way, created a wave like tsunami across the world, you know, with criticisms worldwide? Do you think this law would help the next president fight against terror? Another law right now in the Congress is about to designate Muslim Brotherhood as terrorist organization. Would this law as well help the next president in his fight or her fight against terror? That's something we need to know. So, I mean both of these, you know, JASTA I know is an example of this, a not uncommon conflict between a president or the executive branch. It's thinking about, you know, sovereign immunity and how, if we can sue them, they can sue us and the larger impact of some of these issues. Not that the presidents or executive branches don't care about the personal consequences to, in that case, the 9-11 victims and the litigants. But tend to, particularly in second terms, see things in a kind of a broader, the broader more strategic issues. And sometimes that is not, that the more immediate appeal of people like the 9-11 victims is, you know, has a little more residents on the hill. So you have situations where, you know, in this one where the president vetoed, I think it's his only veto, maybe, and the veto is overridden. You know, and so I think it's a similar dynamic probably with the other, I don't know about the other bill that you mentioned, but no, I don't think that it will help the next president. I think that JASTA being out there will help the next president. I don't think it will. I think it raises the institutional concerns that the president, that caused this president to veto it. So overall, I would say not likely to be a positive for the next president. Thank you, Gary.