Making National Security Arguments in Court (and Congress), Part II: Some Advice for Secretary Kelly

Any day now, Department of Homeland Security (DHS) Secretary Kelly is going to have to make a tough call: whether to sign his name to a document that makes the national and homeland security case for the President’s revised executive order on immigration enforcement.

I previously posted some observations about how, in the early court proceedings regarding the original order, the administration failed to include a declaration from a senior government national security official justifying the order on national security grounds. As I wrote just a few weeks ago:

It strikes me that there is a major difference between the national security arguments being made in this case by the government in support of the legal argument that the Executive Order is lawful than how the government usually has made national security arguments. I have in mind the way in which the government has made national security arguments in (Foreign Intelligence Surveillance Court) FISA matters, but also in how Classified Information Procedures Act (CIPA) and state secrets cases are handled…. All of which is to say, this case, so far, is a very unusual assertion of national security legal argument.

I should add to this list the Freedom of Information Act (FOIA) litigation in which the government engages. In certain of those cases, when a litigant challenges the government’s assertion of national security justification for withholding the release of information under FOIA, the Intelligence Community works together and coordinates a document, often submitted under seal to the district court, signed by a senior national security official, that justifies the withholding of the information on national security grounds. In my prior experience in government, these matters were handled carefully and with substantial thought and high-level intelligence community leadership attention to the assertion of these national security arguments.

In the continuing saga of the immigration order, it seems highly likely that the short stick of defending the order on national security grounds is going to fall to DHS Secretary Kelly. CNN’s Jake Tapper and Pamela Brown reported yesterday that there is substantial concern within the national security community regarding whether there are legitimate national security grounds upon which to defend the order, either in its previous format (which inexplicably applied to lawful permanent residents) or its forthcoming version, which I expect to be more carefully lawyered.

Put bluntly, and as explained in Tapper’s report, there is concern that the document justifying the as-yet-to-be-issued order is being cooked up to fit the policy, as opposed to a policy created to fit legitimate national security needs and objectives.

Secretary Kelly would be wise to ensure that whatever document he is presented with has been fully vetted. He should request an in-person briefing directly from the Acting DNI, the Acting Director of the National Counterterrorism Center (NCTC), the CIA Director and the Under Secretary of Defense for Intelligence (USDI). These leaders—and other senior national security leaders whose agencies have relevant intelligence information on the issue—have an obligation to inform him directly whether they concur in whatever intelligence report that is being prepared for his signature in support of the revised immigration order. Secretary Kelly should ask these leaders to address the national security arguments that have been made against the previous order as publicly attested to by a bipartisan group of former national security officials. As those former officials wrote in a document filed in the immigration order litigation:

We all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. We all are nevertheless unaware of any specific threat that would justify the travel ban established by the Executive Order issued on January 27, 2017. We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer.

Secretary Kelly should also understand that he will be held accountable for the national security document that he signs. In the FISA context, which I have referred to previously as an example of a court accustomed to receiving national security arguments, the Foreign Intelligence Surveillance Court (FISC) has the authority to request a declarant to appear before it in a hearing. Theoretically, this could even include a senior national security official like an agency director or cabinet secretary, if the circumstances were important enough. Given that in the current environment it is a foregone conclusion that whatever revised executive order is issued will be challenged in federal court, the Secretary should approach the national security justification with an expectation that he will be accountable for it.

The national security consequences of cooking up an intelligence report and de-legitimizing national security arguments made by the executive branch to courts and to Congress, are grave. Some intelligence community history is instructive. My prior post addressed an issue that Attorney General Mukasey faced when challenged on Department of Justice decisions to present national security cases to the FISC. On the congressional front, circa 2007, there was a lengthy and substantive legislative debate regarding surveillance authorities. During this legislative debate, which resulted in a bipartisan Congress passing the FISA Amendments Act of 2008, the DNI and Attorney General testified before Congress and held in-person, closed-door briefings with all Members of Congress explaining the critical national security circumstances that justified the legislative proposal. The credibility of those leaders, and the confidence in the information that they were tasked with conveying, was critical in making a successful national security legal argument to Congress that legislative action was necessary.

Starting next week, the legislative debate over renewal of Section 702 of the Foreign Intelligence Surveillance Act (FISA) (set to sunset at the end of the year) begins with a hearing held by the House Judiciary Committee. Multiple previous national security leaders—including previous DNIs, the general counsels of those organizations, two prior Directors of the National Security Agency, and Attorney Generals and Deputy Attorney Generals under both the Bush and Obama Administrations—have attested in public remarks and in statements before Congress that the authority is important to protecting the country from national security threats. In the public policy debates concerning that authority for the last nine years, the legitimacy of the national security argument has not been seriously questioned. Reasonable observers representing various constituencies have substantive debates about the extent of authorities, the oversight of those authorities and potential reforms. But the seriousness of purpose with which national security leaders have approached the debate has never—at least that I can recall—been seriously questioned.

The manner in which this administration treats national security arguments—in court and to Congress—will have profound consequences when it comes to real national security threats. Secretary Kelly will need to take all of these factors into consideration as he gives thoughtful consideration to the national security argument that will be made in defense of the revised executive order.