On National Security and Demagoguery: Remarks to the Muslim Public Affairs Council

I was deeply moved Wednesday evening to accept the Muslim Public Affairs Council's Empowering Voices award, alongside Tumblr CEO David Karp and Stosh Cotler of Bend the Arc. I gave the following remarks, though I deviated modestly from the prepared text below. They may be of interest to Lawfare readers:

Thank you, [MPAC President] Salam [Al-Marayati], for those excessively kind words, and thanks to MPAC for presenting me with this award.

I don't have much in common with the President of the United States, but one of relatively few things we share is a distaste for prepared remarks. I generally take the view that if I'm not capable of speaking extemporaneously on a subject, I really have no business speaking on it at all. I've departed this evening from my usual practice and actually prepared remarks—both because I want to publish them on Lawfare and because I am sufficiently moved to be here that I don't entirely trust myself to convey these thoughts off the cuff.

Salam didn’t mention this, but earlier in our acquaintance, back during the Bush administration, I suggested to some folks at the Defense Department that they bring Salam down to Guantanamo Bay for some briefings on detention operations there. And they did so. So let me just start by saying that it’s not every day you get presented an award by a man whom you helped send to Guantanamo!

All jokes aside, I am deeply honored and moved to be here tonight.

When my colleagues Bobby Chesney and Jack Goldsmith and I started Lawfare seven years ago, I never could have anticipated the role the site would come to play in our current politics. We thought we were starting a personal blog for the three of us to write law nerd stuff for national security lawyers. We started it to give to practitioners in government, to scholars, and to journalists technical legal guidance about hard questions the country faced—and that many of our readers faced not in abstract way but in their immediate professional lives. Whom can you and can you not detain at a facility like Guantanamo? Under what circumstances can you target people with lethal force using a drone or using ground forces? Whom can you reasonably subject to surveillance and under what circumstances? When can the President use force to deal with a security threat on his own and when does he need to go to Congress first? These are the sort of question we started the site to address.

Even then, we faced the occasional need to differentiate ourselves from people who used the language of national security to propagate bigotry. If you visit Lawfare—and I very much hope you do—be sure to spell it correctly. If you leave out the “blog” in our URL, “lawfareblog.com,” or if you otherwise mistype it, you may find yourself in one or another remarkably Islamophobic corner of the web. I don’t know what percentage of Frank Gaffney’s web traffic comes from people meaning to reach Lawfare, but I suspect it isn’t trivial. That’s been a sore spot for me for a long time. We have long had to be careful always to distinguish what is genuinely necessary and useful in the national security space from what might just rile up a crowd—and always to separate ourselves from those who don’t bother to do so. This is an old problem for us.

What is not an old problem—but a very new and dangerous one—is the rise of national leadership that does not care about this distinction. Sometimes it is merely careless about the difference between the pursuit of genuine national security goals and the expression and exploitation of bigotry. Sometimes it is far worse than careless.

Those of us who advocate robust national security authorities—and I am such a person—do so knowing that the burden of those authorities does not fall equitably on individuals or communities. When we argue that the government should have the power to do X or Y, we do so fully aware that X or Y will often disproportionately affect some communities, including unfortunately yours, over and above what it does to the community at large. Some time back, to cite only one example, the FBI said it had open ISIS investigations in all 50 states. Some of those investigations—even assuming they are all entirely appropriate and lawfully conducted—will adversely affect the lives of innocent people in the Muslim American community. Those of us who believe in robust counterterrorism authorities should never pretend otherwise. And we should not shrink from the special duties advocating these authorities creates.

To be specific, we have a special duty to distinguish between tools and measures that are genuinely necessary to the security of the country and actions that are ideologically- or bias-driven impositions on the lives of innocent people. To the extent we advocate policies that burden human lives, we accrue a special responsibility to speak up about policies that impose such burdens too broadly, without meaningful security benefit, or without adequate checks. To the extent we defend policies that people may believe gratuitously target Muslims, we have a particularly special duty to speak up against policies that actually do.

Perhaps most importantly, those of us in the national security business have a duty to understand the adjective we use in the phrase “national security”—that is, the word “national”—in an inclusive fashion. Which is to say, we must always remember that it is a liberal democratic society whose security we are protecting. If the Muslim American community, both as a large aggregation of individuals and as a collective, is not secure in that society, then we have not succeeded in realizing any vision of national security to which we would reasonably aspire.

If our national leadership has forgotten these fundamental duties, or if some of our leaders never understood them in the first place, there is good news: the men and women who populate the American national security bureaucracy have not forgotten. Shortly after the first travel ban executive order was issued, I was approached by a counterterrorism officer of a U.S. intelligence agency. He told me that he and a group of his colleagues wanted to put together a public event to raise money both for Lawfare and for Syrian refugee resettlement. The event never came off, but that’s not the point. The point is that he and his colleagues intuitively understood that in the security of a liberal democracy, the security you’re defending is the security of liberalism itself. I think that intuitive understanding is still the norm among tens of thousands of people who do national security under the rule of law every day in the depths of the Deep State.

We founded Lawfare to write about what we call “hard national security choices”—agonizingly hard questions with real costs in all directions and no good answers.

These days, we write about a lot of dumb national security choices:

• Should we keep all people from Chad out of the United States?
• What is the legal status of a presidential tweet?
• How about this one: is it okay to fire the FBI director and then boast about it to the Russians while giving them highly classified operational material?

These are really easy, really dumb national security questions. I haven't thought about a hard national security choice in a year. I would so much rather be here with you tonight talking about some difficult policy option which I might support and that many of you might oppose—which is how I met Salaam many years ago.

But as long as our society needs a remedial course on the distinction between true national security—the security of a liberal society that protects individuals and minority groups in the exercise of their freedoms—and the theatrics of national security demagoguery, I see no choice but to give that course and to draw as loudly and publicly as I can some sharp lines between the security we should and should not be seeking.

I am so very grateful that our efforts in that regard have meant something to you.