Good morning. I would like to thank the ABA Committee on Law & National Security for inviting me. I would also like to thank all of you for waking up early to be here. I would like to talk today about the role of the national security lawyer, and the unique position NSD occupies in that regard, and about emerging issues we are focusing on in the National Security Division.
Those of you who have been in Washington for the last decade will recall a time before the Justice Department had a National Security Division. The organization I have the privilege to lead is the first new litigating division in the Department of Justice in almost 50 years. Before 2006, when NSD was created, the Department’s counterterrorism and counterespionage prosecutors and its intelligence lawyers were housed in different areas of the Department. There was, in other words, no single unified national security element at DOJ.
That, like so much else, changed after 9/11. Our government made sweeping efforts to integrate its national security elements, recognizing that synthesis and integration were key to connecting the dots. Congress created a Director of National Intelligence and a Department of Homeland Security. The national security elements of the FBI were merged into a new National Security Branch.
These efforts were born of a need to institutionalize and facilitate information sharing, and to bridge the gap between our intelligence and law enforcement capabilities. On the heels of these changes, it became evident that another service was in high demand – what the WMD Commission called, “thoughtful, innovative, and constructive legal guidance.”
And so, following recommendations from the WMD Commission and others, the National Security Division was created within the Department of Justice to ensure unity of purpose among intelligence lawyers and the Intelligence Community, on the one hand, and prosecutors and law enforcement, on the other.
Today, the Division’s functions reflect the removal of legal, structural, and cultural barriers. NSD has brought the Department’s national security elements under one roof and into closer alignment with those in the FBI and the rest of the national security community. NSD lawyers work as terrorism and espionage prosecutors with their colleagues in the U.S. Attorneys’ offices across the country, and as intelligence lawyers. They provide advice on cutting-edge legal and policy questions. And they ensure the Intelligence Community has the tools it needs to perform its vital mission, and to do so consistent with the rule of law.
Above all, our goal is to serve as practical problem solvers on the operational, legal, and policy questions we confront with our partners, and to keep pace with an evolving threat, while ensuring that we do so consistent with the rule of law and civil liberties.
Lawyers have, of course, long played a part in the development of our national security system. After all, General “Wild Bill” Donovan—the so-called “father” of intelligence, who headed the OSS—was a lawyer from New York. Yet since that time, the number and prominence of legal questions to the national security realm has grown significantly. And this raises an important question: What role should lawyers play in our national security system? Where does NSD fit in?
Integration, in my view, is a significant part of the answer. Lawyers who are part of the mission they serve will be better at their jobs. They will be more attuned to operational realities and better versed in the field. Quite simply, they will be more relevant. They will make legal decision making part of operational planning rather than an afterthought. Yet knowing how to ask the right questions, and how to give actionable advice, requires working in environments that enable cooperation.
Our job in NSD is not to wait for legal questions to be brought to us, or to provide advice on operational decisions that have already been made; our job is to be present at the beginning and throughout. Just like other senior national security officials across government, the person in my seat has, since the creation of the NSD, attended the morning threat briefings with the Attorney General and the Director of the FBI. So, just like the intelligence operators, the analysts, and the special agents who work on these issues, we aim to stay on top of the threat picture and help devise tactics, strategies, and tools for getting ahead of it.
Today, it is standard procedure for agents planning and conducting counterterrorism or counterespionage investigations to consult throughout the process with NSD attorneys to ensure that all potential avenues for disruption, intelligence gathering, investigation, and prosecution, are preserved. In fact, if you asked me to give you a breakdown of how much intelligence versus law enforcement work we do, I would be hard-pressed to give you an answer. We almost always pursue multiple tracks at once.
We no longer have to cross organizational lines to bring all tools and talents to bear against the problem. Lawyers in our Office of Intelligence work day-in and day-out with the Intelligence Community to secure authorities under the Foreign Intelligence Surveillance Act (or FISA) from the Foreign Intelligence Surveillance Court. They are also charged with conducting oversight of certain activities of the Intelligence Community to ensure that the government’s exercise of those authorities is consistent with the protection of individual privacy and civil liberties. These same attorneys work closely with our prosecutors to ensure that foreign intelligence obtained from FISA can be used to bring terrorists and spies to justice, while safeguarding sensitive national security information.
Our Office of Law and Policy, in turn, plays an important role in ensuring that operators have the authorities they need to keep the country safe. For example, attorneys in this office work with the Department of Treasury to combat money laundering and terrorist financing, help build counterterrorism capacity among our international partners through the Financial Action Task Force and the Global Counterterrorism Forum, and play a role in working with the Intelligence Community on guidelines for intelligence collection and sharing within the Executive Branch. Another part of NSD, the Foreign Investment Review Staff, works with other federal agencies to review the national security implications – and vulnerabilities – of certain foreign acquisitions of U.S. companies.
And this is just a sampling of what we do. It feeds our talented team a steady diet, but it all takes place against a backdrop of an ever evolving threat.
I want to spend a minute on one of the most significant issues we’re facing today – and that’s the threat posed by cyber actors. In many ways, this threat isn’t new. The Department of Justice, through the Computer Crimes and Intellectual Property Section, has considerable experience fighting cyber crime.
We have experience, in other words, dealing with those who seek to exploit cyberspace. But the national security cyber threat picture has undergone a dramatic evolution in recent years. Leaders in our national security community have discussed the cyber threat we face and forecasted that it “will pose the number one threat to our country” in “the not too distant future.”
So it is critical that we apply what we have learned fighting cybercrime, combating terrorism, and pursuing espionage cases to cyber threats to the national security.
Law enforcement and other legal tools are now well-accepted parts of our national security toolbox. They are part of a whole-of-government approach to defending against national security challenges. We have seen the effective role these tools can play against terrorist threats and espionage. And now we are training their attention on emerging cyber threats to national security.
Several challenges confront us in this task. The pervasiveness of cyber technologies and the rate at which they change increases our vulnerability to attack. Technologies can obscure perpetrators’ identities, wiping away digital footprints or leaving lengthy investigative trails. And depending on the circumstances, the purpose or endgame of a particular intrusion may be anyone’s guess – is it espionage? Theft? Mere mischief? An act of war?
In pursuing these cases, we must weigh the value to be gained by continuing an intelligence investigation against the need to use law enforcement tools to disrupt our adversaries’ activities and prevent damage to U.S. national interests—just as we do in the counterterrorism and counterespionage arenas.
Yet another challenge in this area is that cyber intrusions may affect a wide variety of victims with different needs and interests. Victims may be private entities – companies with shareholders, public reporting obligations, and business reasons for wanting to address intrusions in a particular way. Successful collaboration with these companies requires understanding the competing pressures and legal obligations they face.
We have on our side a history of learning how to counter new threats by marshaling our resources and working collaboratively to adapt. The work of my predecessors at the National Security Division is a testament to this.
We are now building on those past successes, applying lessons we learned in the counterterrorism area to the cyber realm. Chief among those lessons is the importance of integration and information sharing.
With those aims in mind, we have created in recent months a nationwide network of National Security Cyber Specialists. This network brings together the Department’s full range of expertise on national security-related cyber matters, drawing on experts from the NSD, from the U.S. Attorney’s Offices, from the Criminal Division’s Computer Crime and Intellectual Property Section, and from other DOJ components. This network is modeled on existing initiatives, including the Anti-Terrorism Advisory Council, which was created to address terrorist threats across the United States, and the Computer Hacking and Intellectual Property network, which targets computer and intellectual property crimes. Each U.S. Attorney’s office around the country has designated a point of contact for the National Security Cyber Specialists network.
The network now serves as a centralized resource for prosecutors and agents around the country. It is a one-stop shop within DOJ for national security cyber intrusion activity. Through this network, we are working closely together to bring our best resources to bear against the problem.
We are using this network to do more outreach to the private sector and to enhance our joint work with the FBI’s National Cyber Investigative Joint Task Force, where we now have a dedicated lawyer from NSD working side by side with agents and operators across the community.
All of this is part and parcel of keeping pace with an evolving threat. Just as we are evolving in the counterterrorism arena to address increasingly diverse and decentralized forms of terrorism, we must likewise strengthen our structures, accelerate our tempo of operations, and modernize our tools to meet evolving cyber threats to our national security. And we must do so in a way that respects our nation’s values and commitment to privacy and civil liberties.
The damage that could be caused by a cyber-enabled physical attack has the potential to be dramatic. But even if a catastrophic cyber event never materializes, there is no doubt that we will face – that we already face – the threat of a death by a thousand cuts: that is, persistent lower-level cyber threats that steadily undermine our national security, siphoning off some of our most valuable resources and disrupting economic activity. Even if the seriousness of the damage being done presently were not as considerable as many have estimated, the rate at which cyber threat activity is increasing would be cause for alarm.
I realize I may be preaching to the choir here. Cybersecurity is a priority for the ABA and President Laurel Bellows. The ABA has assembled a Cybersecurity Legal Task Force and charged it with examining ways to help lawyers protect their practices and their clients’ confidential information and intellectual property. Many of you, I’m sure, can appreciate the important role that lawyers play in safeguarding clients’ information. As we all know, in cybersecurity, your defenses are only as strong as their weakest link.
Regardless of the size or shape cyber threats ultimately take, we need to be prepared before they materialize. While there is much we do not know about how cyber threats will affect us going forward, this much is clear: We can dedicate efforts now to harden our defenses and to lay the groundwork for working effectively together both now and into the future.
Responding to cyber threats is both a challenge and a charge. The measures we take to respond to these threats must be sufficiently durable to stand the test of time and sufficiently flexible to accommodate a changing threat picture. With the help of groups like the ABA Standing Committee on Law & National Security, and the many thoughtful minds here today, we are making important progress toward those goals.