National security lawyers are probably not in the forefront of the public’s mind when one refers to government lawyers, but they serve a vital mission within the public sector. This article explores the duties and responsibilities inherent in that mission, and discusses the continuing role of the national security lawyer after the terrorist attacks of September 11th, 2001.

This paper will start with a brief discussion of the terrorism threat because the threat remains predicate for any serious discussion of where we draw our legal lines. I will then suggest a legal model for looking at questions of homeland security called ordered liberty. The model is simple. First, given the nature of the threat, the executive must have broad and flexible authority to detect and respond to terrorism -– to provide for our physical security. Second, the sine qua non for such authority is meaningful oversight. Oversight means the considered application of constitutional structure, executive process, legal substance, and relevant review to decision-making –- all of which depend on the integrity and judgment of government lawyers.Meaningful oversight protects our way of life. It also protects our security by helping decision-makers get it right on the front end of a decision, rather than investigating on the back end. This model does not detail whether civil service rules should apply to the Homeland Security Department, or whether military commissions are a good idea. The paper will suggest some principles and lessons learned that can be applied to such questions. In the process, two false dichotomies will hopefully be debunked: first, that security and liberty conflict; and, second that oversight and security conflict.

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The Constitutional Duty of a National Security Lawyer in a Time of Terror

Ordered Liberty and the Homeland Security Mission

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The Constitutional Duty of a National Security Lawyer in a Time of Terror

Citations

Ordered Liberty and the Homeland Security Mission

Ordered Liberty and the Homeland Security Mission

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