Chief Judge Baker Offers Students Insider's View of NSC through 'Managing National Security' Course

Students in Chief Judge Jamie Baker’s Managing National Security class enjoyed a rare opportunity to participate in mock National Security Council (NSC) meetings where lives were hanging in the balance.

Few are as qualified as Judge Baker to lead such a dramatic exercise. In addition to serving as Chief Judge for the United States Court of Appeals for the Armed Forces since 2000, he also served as the Special Assistant to the President and Legal Advisor to the NSC, Counsel to the President’s Foreign Intelligence Advisory Board and Intelligence Oversight Board, an Attorney Advisor in the Office of the Legal Advisor at the United States Department of State and a Marine Corps infantry officer. In his seven years at the NSC, he advised the President, the National Security Advisor, and NSC staff on national security law. According to Baker, lawyers play an important and challenging role in national security.

During his recent Intersession course for upper-level law students, Baker observed, “As my friend Leon Fuerth says, the lawyer in the room should help policy move forward with honor, by guiding decision-makers to lawful and preferred outcomes. In doing so, it is critical to leave the law and the Constitution intact, and thus the nation protected and taken care of. You can’t fold under pressure."

Baker stressed that his class scenarios were designed to "show the students how much pressure is on the lawyer, in this case the Attorney General, to get to yes. My role is to show the students how to get to yes with honor, and when necessary have the moral courage to say no, but then guide the decision-maker towards appropriate alternatives.”

Baker recalls that NSC meetings at any level can be tense. “The lawyer cannot and should not give the policymakers any reason to throw them, and the law, out of the room. When you’re calm and collected, you get to be part of the conversation,” he said. “If you have the most offensive personality in the room, then you will soon find you are no longer attending the meetings or seeing the memos you should.”

Law students felt the pressure keenly during the exercises, as each played critical roles at the NSC, including Secretary of State, Secretary of Defense, Director of National Intelligence, Chairman of the Joint Chiefs of Staff, and Attorney General. Baker led the sessions, questioning the students about their sources, challenging their assumptions, and introducing new facts.

“The scenarios gave us a rare opportunity to be in real life situations led by someone who’s been there,” second-year law student John Berosky says. “It was a great example of learning by doing, which is an important part of getting ready for a job, whether it’s in national security or a law office.”

In the first scenario, the United States had learned “with a high degree of confidence” that terrorist groups in Syria were seeking to seize chemical weapons in Syria, potentially during a clandestine transfer of weapons in the hands of the Assad regime. If they were to succeed, U.S. intelligence believed the groups would use the weapons against Regime Forces, hold them as a hedge against the Regime’s use of chemical weapons, use them against targets outside of Syria, or some combination of all three. There had also been reports that one of the groups was monitoring a road to track the movement of chemical weapons in response to the Framework for the Elimination of Syrian Chemical Weapons.

Baker took the student-staffed NSC through a systematic review of the situational analysis, as well as relevant policy options, diplomatic options, intelligence options, and deliverables. It soon became clear that if a “fog of war” exists, then the “fog of policy” can be just as thick. Each response to Baker’s questions led to more questions. There were neither obvious solutions nor easy legal questions.

For example, when the option of a Tomahawk Land Attack Missile (TLAM) strike against the chemical weapons was raised, Baker quickly asked if hitting the weapons with a missile would release their contents and cause exactly the problem they were trying to avoid. “Is there a civilian population nearby? What direction is the wind blowing today? Would they do more harm than good? Is such a strike aligned with U.S. policy? And if not, is the policy valid anymore?” he queried the students.

The second scenario involved intelligence gathered about a potential terrorist mall attack in the United States. Around the same time, a missing persons report had been filed by a father whose son had told him, “I will see you again in paradise,” before disappearing, possibly to Somalia. Metadata later surfaced indicating that the father had received three calls from a cell phone in Somalia, and the son had surfaced in a martyrdom video discussing his intent to give his life for the cause. “Do we have enough to go after the son?” Baker asked.

Second-year law student Brett Weinstein says, “That exercise was especially meaningful to me because of the role that electronic surveillance played in it. I'm very interested in how national security policy and decisions are increasingly reliant upon electronic surveillance.”

The students also learned that in meetings where so much is at stake, knowing when not to speak is often as important as knowing when to speak—especially because silence can be taken as assent.“The students were in a no-fault, no-harm learning process here,” Baker said. “The remarkable thing was that even when there were disagreements around the table, the conversation kept going. In the real world, that has to happen as well. But the consequences are real. The pressure is real, and I want students to get a sense of what that might feel like.”

At the close of the scenarios, Baker debriefed the problems, identifying how he would have prepared for the meetings and what law he would have reviewed, as well as highlighting differences between the exercise and an actual NSC meeting. For example, some of the students were virtual strangers to each other, while the principals at an NSC meeting would have been working together for months or years. “If you are one of the people in that room, you are a Type A personality,” Baker said.

Baker added that in an intelligence briefing, there would have been a lot more interruptions and introduction of new—and perhaps changing—facts. “The essential skill for the lawyer here is to apply law to facts, not just recite law.” Here Baker preached the virtue of preparation or perhaps excessive preparation. “It’s better to plan for 75 things and not have any of them come up than to have one come up that you aren’t prepared to address,” he said.

Looking back, Baker noted that students are hardly going to become national security lawyers in a week. “Be wary of the student who actually thinks he is ready to serve as Attorney General. The class is a success if students look back on this and see that they did something that three weeks ago they didn’t think they could do,” he said. “That will give them more confidence as lawyers, regardless of what field they enter.”

In addition to teaching the class, Baker held sessions with members of the Washington University Veterans Association (WUVETS) and the International Law Students Association. Above all, he said he enjoyed interacting with the students. “Whether one serves in the Marine Corps, Peace Corps, or AmeriCorps, students who have or will serve the public interest—a greater interest—have my respect, and I want to help them achieve their goals and potential as lawyers.” Then he added with a smile, “But, all the better, if they serve the country as national security lawyers, ‘upholding and defending the Constitution.’”