I am part way through Charlie Savage's so-far very interesting new book, Power Wars: Inside Obama's Power 9/11 Presidency. I was struck by a particular passage in chapter 1, woven into the blow-by-blow narrative. It concerns the role of lawyers in national security decision-making in the United States. My personal sense is that these observations cross the border, and are true in Canada as well (although perhaps not to the same degree, because Canada has not tested the bounds of conventional understandings of international and constitutional law quite as aggressively as has occurred in the United States):
As the government has grappled with one terrorist crisis after another since 9/11, tremendous power and pressure have descended on the executive-branch lawyers charged with handling national security issues. Remarkably few of these attorneys ... came up professionally as trained specialists in national security law. Law schools barely taught the subject before 9/11, and its substance has evolved rapidly since then. ... Interpreting and applying law to such turbulent and rapidly changing conditions [stemming from changes in the threat environment and new technologies] has created an unending series of novel dilemmas. Often, even identifying what the legal rule is is subject to a range of viewpoints, and there is little prospect that a court will ever definitively resolve the question because it is very difficult for anyone to establish the legal standing to file a lawsuit about it.
This passage affirms three positions I have adopted, more through happenstance than truly prescient design.
First, the situation this passage describes is one reason why I believe vigorously in the need for national security lawyers to reach into the law schools, preferably in a manner that allows dialogue between government insiders and outsiders. Co-teaching my uOttawa national security law course with Public Safety lawyer Michael Duffy has been particularly rewarding for me, and our students.
Second, I believe the law schools must ensure the development of non-governmental expertise in this area of the law -- I teach and write in large measure with this objective in mind. And I am very keen to cultivate interest in the area among other colleagues -- I will happily share information on my course, and provide whatever assistance I can to colleagues at other Canadian law schools contemplating a national security law course. So far, they are very rare. Kent Roach teaches his anti-terrorism courses at Toronto. Ron Atkey has taught a national security law course at Osgoode and Western. Michael Duffy and I teach at uOttawa. And then I run out of courses of which I am aware. (Please let me know if there are more).
Third, the points made in the Savage passage also go a long way to explaining why I believe strongly that Canada should adopt a UK/Australian-style Independent Monitor on National Security Law, as part of a larger overhaul of national security accountability described in this paper and our book. Government lawyers should not have a monopoly on defining the legal questions, offering advice on those questions, and then having their opinions protected behind a secrecy wall, all but guaranteeing that they will never be known or challenged. Groupthink can afflict the best of us, and (as painful as it can be) I have come to relish the chance to throw my conclusions and opinions into the maw of debate. That process works -- opinions come out better.
Government lawyers should take comfort in the idea of an Independent Monitor probing Canada's national security laws, for exactly the same reason.
And as an addendum, I'd add the need for this "mixing it up" function is more acute in Canada than in the United States, where there is a tradition of revolving door between government and non-government service. In Canada, that is close to unknown, and we live in silos.