Jamie Gorelick and Stephen Preston, in CSIS Interviews, Discuss the Rule of Law

• 10.7.2020

WilmerHale Partners Jamie Gorelick and Stephen Preston, in separate discussions on the Center for Strategic and International Studies’ The Engine Room of Democracy podcast, discussed how the US’ commitment to the rule of law has defined the nation to itself and internationally.

In a wide-ranging discussion with John Hamre, the think tank’s president and chief executive officer, Ms. Gorelick, a former US deputy attorney general, discussed how the rule of law has affected the evolution of various areas of law, such as the rights of the criminally accused and counterintelligence.

Asked to explain how the controversial and secretive Foreign Intelligence Surveillance Act court or FISA court, which reviews counterintelligence applications for eavesdropping warrants, can maintain its legitimacy in a democracy that highly values the transparency of its courts, Ms. Gorelick said:

“Before there was a Foreign Intelligence Surveillance Act, presidents just asserted that they had the right to spy on spies.”

And that assertion was not limited to suspected spies but snared Americans thought to be under foreign influence, which led to notorious abuses of the J. Edgar Hoover variety.

“You may not like the Foreign Intelligence Surveillance Act but it’s compared to what?” Ms. Gorelick said.

While critics have disparaged the court as a rubber stamp, Ms. Gorelick disagreed, saying such critics are unaware of all the applications the court returns to counterintelligence officials as incomplete.

“In my view, the FISA court is tough. It asks tough questions and sends applications back all the time,” she said. The court has also advanced the rule of law over time by instituting an adversarial process, adding pro bono lawyers who argue against the government’s positions.

As a former general counsel at both the Defense Department and Central Intelligence Agency, Mr. Preston addressed the significance of the rule of law in the context of U.S. national security:

“An abiding respect for the rule of law in military operations and intelligence activities is one of our nation’s greatest qualities… It makes us an example to the world. It commands the respect of our friends and allies. And it is a great strength against our adversaries, including those adversaries with only contempt for the law.”

Asked how he evaluates whether the use of force in overt or covert operations passes legal muster, Mr. Preston, who chairs WilmerHale’s Defense, National Security and Government Contracts Practice, explained:

“I think of it in terms of two basic issues. First, whether there is legal authority to act in the first place… to go to war or to conduct an operation. And, second, whether the operation is being conducted in compliance with the law… And there are two fundamental sources of law, first under domestic US law – the Constitution, statutes and executive orders of the US – and then under international legal principles.”

“So as I think about how you assess the lawfulness of military action, the lawfulness of the use of force, I think of a very simple four-box matrix, with US law and international law across the top, and authority to act and compliance in execution down the side,” he said. “When I’m looking at a prospective operation, I want to think about each of those four boxes to ensure that the operation is fully compliant with applicable law.”

Listen to Ms. Gorelick’s full interview and Mr. Preston’s entire interview.