National Security Law
This Guide is designed to give you a brief overview of the legal field in National Security Law. It provides practical information regarding the types of employers with which you can pursue a career; steps to take during law school to help a future career in the field; security clearances; and resources to further research this rewarding field.
This content is courtesy of the Bernard Koteen Office of Public Interest Advising at the Harvard Law School.
What is National Security Law?
Defining National Security Law (NSL) is challenging. The subject covers vast practice areas, from customs regulation to immigration to human rights. Practice settings are also extremely varied, from government to nonprofits to private practice. Each area embraces a myriad of legal issues, leading to a multifaceted legal domain that is as challenging as any legal field could be. Indeed, part of the difficulty in defining NSL resides in the fact that real-world situations calling for a NSL focus are themselves hard to pin down with any present-day certainty. What was once a domestic criminal matter can now be an NSL concern. What was once an issue of military discipline may now have national security implications.
The work is among the most demanding in the legal arena, requiring a kind of commitment that in many ways is unique. The stakes can be extraordinarily high, the complexity of issues often reaches beyond the abilities of any single practitioner, and the range of situations calling for legal analysis is unpredictable, fluid, and often of the utmost urgency.
Where can I practice National Security Law?
Much of the NSL field is concentrated within the federal government and the opportunities span the Executive Branch, Capitol Hill, and military branches. Some state and local governments have also formed their own homeland security offices. In addition, independent advocacy organizations also serve an important role within the system by addressing an expanding set of national security and civil liberties issues.
Federal Government: Executive Branch
Many federal agencies work both in collaboration and independently on national security issues. Students should start by exploring the U.S. Intelligence Community, a coalition of 17 agencies that collaborate to gather intelligence for national security and foreign relations activities. Some of the most well-known agencies that deal with national security issues are outlined below.
- The Central Intelligence Agency (CIA) is responsible for providing national security intelligence to senior U.S. policymakers; it collects, analyzes, and disseminates intelligence information to top U.S. government officials. Of particular interest to lawyers is the Office of the General Counsel, which manages the agency’s legal affairs. This office is responsible for intelligence and national security legal matters but also deals with administrative law, legislative affairs, personnel matters, litigation, and many other issue areas as they relate to the agency’s work. Lawyers are also employed in less strictly legal capacities such as in the Clandestine Service as analysts.
- The Department of Defense (DOD) is responsible for the United States Armed Forces and for an array of agencies that deal with national security, including the National Security Agency and the Defense Intelligence Agency. Opportunities to practice NLS exist throughout DOD, including in the Office of General Counsel and in the General Counsel of each armed services branch. National security law at DOD is extremely varied, and includes international law, treaty interpretation, intelligence oversight, legal parameters on warfare, and legal ramifications of foreign policy decisions.
- The Department of Homeland Security (DHS) is responsible for protecting the U.S. from terrorist attacks, natural disasters, and other incidents. Lawyers often work in the Office of Policy, the Office of the General Counsel, and the Office of Legislative Affairs. Other opportunities in DHS include the U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection, U.S. Coast Guard, Federal Emergency Management Agency (FEMA), U.S. Immigration and Customs Enforcement (ICE), U.S. Secret Service, and Transportation Security Administration (TSA).
- The Department of State is responsible for international relations and foreign policy and grapples with a wide array of issues, including counterterrorism, cyber issues, energy security, and U.S. foreign engagements. Of particular interest to lawyers may be the Office of the Legal Adviser, which provides advice on all domestic and international legal issues related to the Department’s work. Lawyers are also employed throughout State including the Office of Policy Planning among other bureaus.
- The Department of Treasury is responsible for maintaining a strong economy and managing the U.S. government’s finances. To strengthen national security, the Treasury Department combats potential threats and protects the integrity of the financial system, including the financial aspects of terrorism. Of particular interest to lawyers may be the Office of General Counsel, the Office of Foreign Assets Control, and the Financial Crimes Enforcement Network.
- The Federal Bureau of Investigation (FBI) is an intelligence and law enforcement agency within the Department of Justice. It has a National Security Branch (NSB), which deals with counterterrorism, intelligence, counterintelligence, and weapons of mass destruction.
- The National Security Division within the Department of Justice is responsible for the investigation and prosecution of national security threats. Some U.S. Attorneys Offices have also established specialized Anti-Terrorism and National Security Units.
- The National Security Council (NSC) works within the White House to advise the President on foreign policy and national security matters and helps him coordinate and administer national security and foreign policy agencies.
Other federal agencies that practice NSL are the Office of the Director of National Intelligence; the Transportation Security Administration; the Counterterrorism Unit within DOJ’s Office of Overseas Prosecutorial Development, Assistance, and Training.
Many opportunities exist within Congress for lawyers to gain experience and exposure to national security law, most notably through work on House or Senate committees and subcommittees dedicated to addressing national security issues. In the Senate, staff is hired by the Senators, not by the committees although a staffer may be hired to work specifically on one committee. In the House, lawyers can be hired directly by committees. Each committee and subcommittee hires its own counsels from the majority and minority parties. These attorneys might research the committee’s issues, advise members on legislative responses, oversee hearings, and draft legislation. Relevant committees include those on homeland security, defense, armed services, immigration and border control, terrorism, intelligence, and appropriations.
Each of the five branches of the U.S. military has commissioned officers serving in the Judge Advocate General Corps, commonly referred to as JAGs. JAG Officers serve at all levels of military operation, providing legal advice and services to soldiers and commanders overseas and in the United States. JAG officers develop broad legal competencies during their initial training in international, administrative, and contract law, as well as military justice and legal assistance.
While the opportunity to formally specialize in national security law may not come until later in a JAG officer’s career, JAG officers can develop relevant national security law experience during deployment. JAG officers provide legal advice on the rules of engagement, the proper conduct and pursuit of investigations, the law of war, the treatment of detainees, and mission-related military justice.
The application and hiring process for JAG officers is different for each branch of the military, and may include opportunities to apply as early as a student’s second year of law school. Because the application process involves in-person interviews and screenings as well as submitting an application packet, it may take up to two months to prepare a complete JAG Corps application, and applicants should begin preparing well ahead of the application deadline. It is not uncommon for applicants to apply more than once, as the branches like to see continued interest.
State and Local Governments
Because of the ever-growing complexity of the laws that govern the field, some state and local governments have formed their own homeland security agencies. Offices such as Massachusetts’s Executive Office of Public Safety and Security (EOPSS) and the California Emergency Management Agency (CEMA) handle issues of homeland security at the state level. Much of the work of these state agencies involves partnering with their federal counterparts to undertake national initiatives. Although terrorism is most often prosecuted in federal court, state level prosecutions may still occur.
Some cities have installed robust counterterrorism offices. The New York Police Department’s Intelligence Division and Counter-Terrorism Bureau is a prime example, with its broad counterterrorism efforts that are at times, by necessity and circumstance, national in scope.
Advocacy organizations address an expanding set of national security and civil liberties issues including the abuse of detainees in U.S. custody, government secrecy and surveillance, oversight of private security contractors employed by the military, and discrimination against Arab and Muslim Americans in the wake of 9/11. Attorneys at these organizations work in a variety of capacities, from litigating cases and conducting legislative advocacy, to providing comments to federal agencies and congressional committees.
Litigation is one aspect of the national security work of advocacy organizations such as the Center for Constitutional Rights and the Electronic Frontier Foundation. For example, attorneys from the Center for Constitutional Rights provided direct representation for terrorism suspects detained at Guantanamo Bay, and were involved in a number of suits challenging the United States’ national security practices. Likewise, the Electronic Frontier Foundation has brought suits that challenge the National Security Administration’s domestic surveillance programs.
Beyond litigation, national security work at advocacy organizations frequently entails broader advocacy campaigns. Public battles against the U.S. government’s policies on detention, surveillance, and interrogation are often led by civil liberties and civil rights attorneys.
The Rand National Security Research Division (NSRD) conducts research and analysis for many national security sponsors including the U.S. intelligence community and the ministries of defense of U.S. allies and partners.
What can I do in law school to help my career in National Security Law?
For those aiming to pursue a career in national security law, it is especially important to develop a track record of demonstrated interest in and commitment to national security work. It is important to show your involvement in these issues over time, particularly throughout law school.
One of the best ways to get a start in national security law is to pursue a summer position in the field while in law school. In certain circumstances, a summer internship (particularly as a 2L) may lead to a post-grad position; likewise, demonstrated success in the field will naturally provide a student with an edge over inexperienced applicants for post-graduate jobs. This advantage can be compounded by factors such as the possession of a security clearance; a candidate with a clearance from a summer job may be able to start a position immediately, forgoing the normal wait time.
As in other areas of public interest law, networking is a crucial factor in obtaining a position. Students interested in summer positions should make an effort to network with alumni in the national security field, particularly with older law students who have previously held relevant summer positions.
Students interested in national security careers should familiarize themselves with national security law and other related topics through their coursework. Publications and research work for professors are others ways to build a track record and show a demonstrated interest in national security law.
Security Clearances & Special Considerations
The security clearance process required for national security positions can sometimes be unforgiving and digs deeply into your personal life. Such scrutiny is highest when classified or other highly sensitive information and situations are involved. Some federal agencies require summer, term-time, and post-graduate applicants to undergo background checks. Agencies that historically have required background checks include DOJ, the CIA, and the Department of Defense. This background investigation is rather routine for summer work (fingerprint check and questionnaire), and much more extensive for full-time employment–with typically the FBI checking references, former employers, coworkers, friends, neighbors, landlords, institutions of higher education, and credit/military/tax/police records. While this process almost always runs smoothly and is completed without a problem, security clearances for DOJ and other federal agencies have occasionally taken long periods of time and have proven a major obstacle to a few applicants.
A key element of security checks are financial issues such as defaulted student loans, neglected financial obligations, failure to comply with tax laws, or failure to comply with intellectually property law (particularly with respect to illegal downloading of music or video recordings). Failure to file or pay taxes may preclude a candidate from passing the background check.
Some summer internships, particularly those with DOJ, have a residency requirement. Candidates who have lived outside of the U.S. for two or more of the past five years have difficulty being cleared. (Federal or military employees and their dependents, including Peace Corps volunteers, are exempted from this rule.)
Federal, state, and local governments are permitted to administer lie detector tests under the Employee Polygraph Protection Act. The CIA and FBI require polygraph tests of some permanent employees. Failing the polygraph will bar your employment.
The following links will be useful as you continue to explore this field:
- The official job site of the federal government. https://www.usajobs.gov/
- The United States Intelligence Committee is comprised of 17 federal agencies. https://www.intelligencecareers.gov/
- Eligibility Guidelines for Gaining Security Clearance. http://www.military.com/veteran-jobs/security-clearance-jobs/security-clearance-eligibility.html
- The Center for Constitutional Rights is a nonprofit organization committed to advancing and protecting rights guaranteed by the U.S. Constitution. http://ccrjustice.org/
- Human Rights Watch is a multinational NGO and leader in research and activism on human rights, including activities associated with U.S. national security efforts. http://www.hrw.org/
- Open Society Foundations seeks redress for human rights violations as part of it National Security and Counterterrorism division. http://www.soros.org/topics/national-security-counterterrorism
- The Rand Corporation is a policy think tank that engages in formulating innovative research and analysis on various topics. http://www.rand.org/
- The Brookings Institution is one of the oldest and most highly-cited think tanks in the world and has a robust national security presence. http://www.brookings.edu
- The Aspen Institute is a nonpartisan think tank. Its Homeland Security Program works to heighten public awareness as to the nation’s vulnerability to terrorism. http://www.aspeninstitute.org/policy-work/homeland-security
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