précis Interview: James E Baker

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  • Fall 2017
A conversation with James E Baker

James E Baker, former chief judge of the US Court of Appeals for the Armed Forces, joined the MIT Center for International Studies (CIS) as a Robert E Wilhelm Fellow. He will use his one-year fellowship at MIT to conduct research on emerging technologies and national security challenges.

FALL 2017 : précis Interview
James E Baker
November 21, 2017

précis: What are the gaps in the study of civil military relations that you think political scientists should be paying attention to?

JB: I think there are three aspects to civil military relations; however, we normally focus on just the first aspect. First, there’s civil-military relations in terms of civilian control of the military. This stems back to George Washington’s pivotal act in 1783 of choosing to resign his commission rather than marching on congress as many of the continental officers wished to do. One might say that civilian control of the military was born on the steps of the Temple of Virtue in Newburgh, New York, where Washington talked his officers down from rebellion. Civilian control is manifested today in the position of the president as the commander in chief. And, in less grandiose manner, it is illustrated in my court where 5 civilian judges on the US Court of Appeals for the Armed Forces hear appeals of military justice cases, with appeal from there to the Supreme Court.

The second aspect is the connection between civil society and military society, which is one of the essential ingredients of a healthy democracy. I think this is represented in the concept of the citizen soldier who has a stake in the democratic virtues of the state as well as the state’s security. You don’t want a civil society and a military society that are alienated from each other and you don’t want a small number of Americans carrying the honor and burden of serving in the military. The military does not have a monopoly on patriotism. I like to remind people that government lawyers also swear an oath to uphold and defend the Constitution.

The final box which does not get addressed adequately is about the role of the military in civil society reflected today in homeland security doctrine and practice. When is it appropriate—if ever—for the military to engage in domestic operations? There is an instinct to be dogmatic here. But that would be a mistake. It is better to be thoughtful. As reflected in Puerto Rico and during Katrina, in the direst of disasters the military is often the most capable if not only institution that can address the challenges. At the same time, the law—and military culture—should always be mindful of our essential constitutional and democratic values and safeguards, which eschew the use of the military in domestic law enforcement and control. One answer is to have clear law and expectations in this area so that it is clear when we are approaching critical demarcation lines as well as when we have crossed them and need to return.

précis: A few months ago, President Trump shared intelligence from a Middle Eastern ally with Russia. He was strongly criticized for this behavior, but what does the legal perspective have to say on it?

JB: As a judge, I am not inclined to talk about a specific matter without knowing the facts, so I won’t. But as a general matter, the president as commander in chief and chief executive has control and authority to both classify and declassify national security information as well as to delegate to other people the authority to do so. However, what is lawful isn’t necessarily what is wise or prudent. And, where an official discloses information provided by a foreign government there is risk the foreign government may no longer share information with us, or more likely, delimit the manner in which they do so.

A classic illustration of the president’s authority in this area involves the La Belle Disco bombing in 1986 when the government of Libya bombed a disco in Berlin with the intention of killing American service personnel who were known to frequent the club. The US knew the Libyan regime was behind it because it had signals intelligence between the agents in Berlin and Tripoli. In response, the US engaged in airstrikes against Libya. Despite the fact that the intelligence was from a sensitive source and, I gather, against the advice of his intelligence community, President Ronald Reagan decided to declassify the information to demonstrate why we were taking military action against Libya. As a matter of law, it was entirely appropriate for the president to do so as it was for the president to weigh the relative costs and benefits of giving up an intelligence source or method in support of diplomacy.

précis: Given your vast experience in both the academic and policy communities, what advice would you give to graduate students who are unsure of whether to pursue careers in academia or government?

JB: Do both if you can; they will reinforce each other. Some of the highest quality public servants I have known have been people who have rotated through both communities—like Senator Daniel Patrick Moynihan who was a professor of Government at Harvard. Before he was a senator, he was a senior adviser to four presidents—Kennedy, Johnson, Nixon and Ford. He was a better academic because of his practical government experience and he was a better government official because of his ability to see the bigger picture. He managed to do both and frankly, he irritated both communities because of it. It's not risk free or consequence free and, of course, the tenure process does complicate matters.

Knowledge should inform government policy debates and not just academic ones. I’ve taught at law schools for 15 years and I’ve also spent 35 years in the government working on national security issues. When I was working on national security issues, I felt that the academic community wasn’t connecting as well as it might to the policy community and in the way that it should. One of the things that attracted me to the Center’s Robert E. Wilhelm fellowship, in fact, is that it is specifically intended to help bridge the gap between academia and government. If you wish to inform the debate as an academic, then you have to figure out how to communicate in a way that is digestible for a government official—In the case of immediate problems—short, clear, statements of the problem presented followed by pros and cons and recommendations. In addition, academics have the time and inclination to address long term trends and strategic challenges that government officials generally do not. Here too, a statement of the problem followed by consideration of the options and implications is essential. And don’t forget that the process is not complete without dissemination.

Let me give you an example. I wrote a National Security Council (NSC) Process Guide in 2016 for “the incoming administration.” It identified key issues the US president should address in running the NSC. The report was non-partisan and objective and intentionally completed before the election. Among other things, it described the importance of having clear rules and guidelines for communicating with the Department of Justice and FBI, with recommendations on good process. I sent the report to the two transition teams and to the Center for Presidential Transition, which was created to advise both candidates. I will leave it to you and your readers to determine whether anyone read the report.

précis: While at CIS, what are the research issues that are on your mind and that you are hoping to work on?

JB: I’m really interested in the intersection of emerging technology and national security law. The advent of artificial intelligence has created new challenges for our national security. The law has always moved much slower than technology. At the same time, AI has huge implications for things like autonomous weapons systems as well as for intelligence purposes and we are facing new legal challenges to adapt to them. In my belief, the best way to approach this is to have process-oriented, rather than just substance-oriented, law. The substance cannot keep pace. However, a requirement for good process and accountable decision-making will ensure the right people are in the room and will bring current substantive knowledge to the issue at hand.

As an example of the law always chasing technology, in 2014, I was on the US Court of Appeals for the Armed Forces and we were one of the first courts to look at the application of the Fourth Amendment to the iPhone, years after the iPhone came out but also before the Supreme Court started dealing with these issues. Much of the relevant case law just did not align with contemporary technological practice. It felt very “rotary phone.” The search metaphor used by many courts and the case law at the time equated the search of a cell phone incident to arrest as akin to the search of a container, like a suitcase. But even fifty-year old judges like me know that an iPhone is much more than a communications device or container. It is a computer, a photo album, an office, a key to one’s house and life. On a continuum, a search of a phone may be more like the search of a home than a communications device. So our court abandoned old metaphors and returned to process and consideration of what was reasonable under the Fourth Amendment. Of course, there are drawbacks to a process-oriented reasonableness application of law. You can lose specificity and predictability, and thus stability in the law.