Photo by Jennifer Hancock.
As much as he liked Davis Polk, where he worked as a litigator, Bobby Chesney always planned to end up in academia. As the University of Texas School of Law professor explains, however, “it took a few tries.” Before the Sept. 11 terrorist attacks, Chesney found a “lukewarm reception” among school hiring committees to his interests in critical national security issues like the Foreign Intelligence Surveillance Court. But the demand changed after 9/11, and Chesney considered himself lucky to get his first position at Wake Forest Law.
“What an amazing community,” Chesney says. “I was teaching evidence, civil procedure, and constitutional law for them, but they were very supportive of my scholarly focus on national security.”
The San Antonio-born Harvard Law grad was even more thrilled to get a position at Texas Law in 2008. He has been one of the leading minds in national security law through his scholarship, teaching the next generation of lawyers and co-founding the immensely popular Lawfare blog. Chesney and fellow law professor Steve Vladeck also elevate the debate on current issues through their humorous and insightful National Security Law Podcast. He serves as the law school’s associate dean for academic affairs and directs the university’s Robert S. Strauss Center for International Security and Law, which among other endeavors is building out a multi-disciplinary approach to teaching cybersecurity issues.
Lawdragon: I assume that becoming an expert in national security law, and teaching it, is different than with other areas of law given the variety of issues involved.
Bobby Chesney: The conventional approach for a new law professor is to spend your pre-tenure years building out your expertise and learning the ropes in a specific domain of legal study such as criminal law, or international law, and so on. That is: going deep in one area of law that might apply to a wide range of particular topics. I didn’t want to do that. I wanted to focus on a particular topic – counterterrorism – and develop broad familiarity with how a bunch of different areas of law all pertained to that issue, and how those areas brushed up against and overlapped with one another in fascinating ways. This proved to be a very good strategy. As most of us appreciate by now, the policy challenges of the post-9/11 period were – and still are – defined by their blending and blurring of criminal law enforcement, military action, covert action, intelligence collection, and the like. It seemed to me that what was really interesting, and where an academic could maybe add a little bit of value, would be to think about where all the seams were between those areas.
LD: So I also assume you have to teach it a different way, as well.
BC: Yep. One thing I love about the various national security law courses I teach is that they all require engagement with multiple areas of law. That makes for a great upper-level law school experience. I also think it’s very important to build into the teaching a serious amount of focus on the underlying policy problems themselves, as well as an understanding of the various institutions, mostly government but some non-governmental, that address those problems. You can’t study the legal aspects in isolation, in other words. It would be like trying to understand environmental law without knowing or caring anything about pollutants, polluters, or the EPA. You wouldn’t just sit there and memorize the Clean Water Act.
LD: What led to your switch from Wake Forest to the University of Texas School of Law?
BC: I deeply and truly loved Wake Forest, and turned down some early lateral inquiries because of it. We’d really liked living in New York City before that, and it was a blast to live in the Boston area during law school. But my heart was always in Texas. My wife and I both are from San Antonio, our families were still there, and so were many friends. Plus the warm winters and the Tex-Mex food. We are Texans through and through, and we always felt that the only school that would seriously tempt us to move would be UT.
It always seemed like a pipe dream. You can’t just pick one school and expect them to be interested, after all. But in the spring of 2008, to my utter surprise and delight, UT reached out. It turned out that they were interested in hiring an early-career person who did more or less what I did. I agreed to do a one-year visit with no guarantee of an offer at the end. It was basically a nine-month job interview, which wasn’t too fun. But all’s well that ends well. At the very end of the academic year, it worked out and we got to stay. The whole thing felt like divine intervention, and we feel very, very blessed that it worked out. We are now Longhorns through and through!
LD: One of the issues we cover in-depth at Lawdragon is the military commissions at Guantanamo, which Lawfare and the podcast also cover. Can you discuss some of your views of this type of justice? I know that, as a general rule, you are not opposed to them.
BC: A properly-constituted military commissions system can be very useful, and certainly legal, in the right circumstances. It’s especially important to have the option in the traditional, historical context in which military operations are underway in a place in which there is no realistic alternative option for criminal adjudication for some set of persons. The problems with Guantanamo’s military commissions, from this perspective, are two-fold. First, this doesn’t fit the traditional mold of a situation in which you need the commissions in order to have some plausible mechanism for trials. And second, the commissions after 9/11 started off with a level of procedural and evidentiary safeguards that may have been tolerable in the mid-20th Century, but were never going to fly in the 21st. Those procedural and evidentiary shortcomings have been substantially corrected over the years, of course, but the initial problems left a seemingly-indelible stain on the reputation of the system, which is a very critical factor however much it no longer may be deserved.
And meanwhile, there have been a seemingly-endless number of further challenges, large and small, that collectively function as sand in the gears. All that is in contrast to the incredible efficiency and capacity that’s been demonstrated for the civilian Article Three courts, which get the job done expeditiously and with maximum legitimacy. I think we all understand that a big part of counter-terrorism is bound up in the perceived legitimacy of how you’re acting, so this consideration carries a lot of weight for me.
LD: You’ve also said it’s legal for the U.S. to hold detainees at Guantanamo, at least so long as the U.S. continues to use the Periodic Review Board – the interagency parole board that assesses whether detainees remain threats or can be released.
BC: There is no question that the United States has been and continues to be involved in an armed conflict with a variety of groups in a variety of places, though there are plenty of tough boundary questions of course. With the armed conflict come the laws of armed conflict, including the authority to resort to lethal force. There should not be – and there isn’t – such a thing as an armed conflict where it’s lawful to try to kill someone as a first resort, but not to hold them in non-criminal detention for the duration of hostilities or at least for such time as they continue to be an imminent security threat. But whenever you are dealing with non-POWs – that is, proper soldiers fighting for a state who may be held for the duration of hostilities – it is important, and I think required by the law of armed conflict, that there be a periodic review process of some kind, focused on continually asking: do we still really need to detain this person?
LD: President Trump has vowed to fill Guantanamo with “bad dudes,” but practically, right now there doesn’t seem to be any way that would happen.
BC: Current circumstances don’t create many opportunities for that sort of thing. We have been doing our level best, for years, to act by, with, and through local partner forces in all sorts of locations, including the combat zone situations like Iraq and Syria. We don’t run any large-scale detention-capable facilities overseas, and Guantanamo itself is a political and legal minefield at this point, no matter what was said on the campaign. So the model for many years has been that when there’s been a capture situation, the disposition plan is “That’s for the locals” – we don’t administer it ourselves. There are strategic, operational, and political reasons that encourage this approach.
There is another consideration that we’ve talked about a lot on the podcast. If you can prove someone is an al Qaeda member, or an Afghan Taliban member, then you know from caselaw that the courts will support the detention if you have evidence. But what’s not at all clear, because we’ve never had Guantanamo detainees raising the test case is, is the same thing true for someone from al Shabaab, AQAP [Al-Qaeda in the Arabian Peninsula], ISIS, etc.? There’s never been a case to test the proposition that the National Defense Authorization Act for Fiscal Year 2012, which states the detention standard that currently governs, and the 2001 AUMF [Authorization for the Use of Military Force] apply in such cases. So, from that point of view, it’s risky for the administration to potentially put that into court by bringing a detainee of that stripe to GTMO. If the answer is no, then suddenly you have a tremendous problem, for example, for our use of air power against those groups. For now, the status quo is no detainees, no litigation, no courts telling you that you don’t have the legal foundation you think you do. I think this looms very large in explaining why we haven’t had ISIS detainees brought to Guantanamo yet.
LD: The ongoing, big-picture debate has always been whether to view anti-terrorist campaigns in a criminal context or a war context. You seem to support a flexible approach.
BC: I think it’s as simple as this: Terrorism isn’t an either/or proposition. It doesn’t have to be a binary choice, such as: Terrorism is war and therefore the law of war applies to all terrorism, or, terrorism is not war and therefore the law of war never applies to terrorism. Terrorism can happen outside the context of armed conflict, and it can happen in the middle of an armed conflict – where you have sufficient organization in the terrorist group to where it could qualify as an organized armed group, and if the nature and intensity of the violence running both directions is sufficient. Thus, there’ll be some terrorism that’s under the cover of the law of armed conflict, but some that is not. Who would deny that the law of armed conflict is applicable in Iraq and Syria today in operations against the Islamic State, which is currently the most prominent terrorist group? That’s an obvious case. The harder questions are: What if somebody’s ties to the Islamic State are not clear? Or if not ISIS, what is the nature of the organization in the conflict?
LD: Talk a little bit about your approach to teaching cybersecurity – what’s your approach here and what does the school offer?
BC: At UT we are strongly committed to making an innovative contribution to education relating to cybersecurity. It’s a central aim of the center I direct, the Robert Strauss Center for International Security and Law. It’s a university-wide, multi-disciplinary research unit, and part of my charge is to be entrepreneurial in looking for issues that beg for a multi-disciplinary approach and finding ways to address them. Cybersecurity is such a perfect fit for that mission. It’s important for lawyers to better understand the relevant technology, policy architectures, and business considerations. It’s important for computer scientists and engineers to know the law, policy, and business aspects better. And so on, around the horn. Our aim is to pioneer courses that provide a sophisticated, but smartly-accessible interdisciplinary cross-understanding. It will be one of the ways UT-Austin will distinguish itself in this area in the years ahead.
LD: How do you teach an evolving field?
BC: It’s so much work, but I will admit it’s a royal pain to create and properly sustain the course materials. You can’t just take a casebook off the shelf or use someone’s materials developed for a law-only, or policy-only, or business-only audience. You have to make some very careful decisions about what is in-scope and what is out-of-scope, based on a clear-eyed understanding of what you really want to accomplish with the course. I don’t want it to just be a haphazard run-through of various hot topics. I want there to be a method to the madness, a conceptual framework that makes sense and that the students can use as their mental map of the field. Then you have to comb through the massive amounts of scholarship, government documents, news articles, and the like, finding a good mix of the intriguing and the necessary, which aren’t always the same thing. We’ve got multiple pilot courses underway right now, and shortly we’ll start sharing the syllabi and other materials so others can use them as much as they might like, most likely posting them at a high-visibility outlet like Lawfare blog.
LD: What’s the importance of that blog to you? And the podcast?
BC: For many years now, the most timely and interesting national security law conversations have taken place in the blogosphere. Lawfare, which I co-founded alongside the amazing Ben Wittes of Brookings and Jack Goldsmith of Harvard, has now been around for more than seven years. There was nothing like it at the time, but though we knew we were filling a niche we never dreamed how big it would become. We were more than satisfied when it got to the point where it became standard reading for people in the field, but now it’s leapt to a more-or-less mass audience, fueled by the intense amount of interest surrounding all things Trump and the fact that much of the Trump news cycle tends to concern national security. I’m just immensely proud of it because I think on a daily basis we’re elevating the dialogue and showing that people can disagree about these extremely important and highly sensitive issues, but they can do it respectfully and with real rigor and expertise.
The National Security Law Podcast is the direct result of UT’s decision to hire my dear friend Professor Steve Vladeck, who is an all-around amazing person. We share a passion for national security law issues, but we’ve had many years of practice disagreeing with each other, and one day it occurred to us that our daily hallway debates about the latest developments just might be of interest to others. So, with very, very little preparation, we started up a podcast. For better or worse, the National Security Law podcast is pretty much a cross between “The MacNeil Lehrer News Hour” and “Car Talk,” with the security focus.
We cover all the most important recent developments, we go down into the legal weeds as far as we can, we are quick to point out disagreements and then explore them in a friendly way, we laugh too loud and too often, and we wrap every episode with entirely irrelevant trivia regarding Game of Thrones, the NBA, or whatever we’ve been reading lately. Our goal is for it to be accessible and useful for anyone, whether a legal expert or simply an interested person. And we aim for it to be entertaining enough to keep you tuned in for the full hour every week. So far, it’s working. We’ve been at it since January, and get between six and seven thousand downloads every week.
LD: How and why did you become interested in legal education from the admin side as an associate dean – looking at the quality of the school as a whole – as opposed to just teaching your own courses?
BC: Several years ago we had a leadership turnover at the school. The academic affairs associate dean position was open, and I was asked to take it on a short-term basis. I resisted. I didn’t want to be taken out of the classroom even a bit, and I certainly didn’t want to disrupt my scholarly agenda. But in the event they talked me into it, and I very quickly discovered just how worthwhile the administrative work can be.
One of the core responsibilities of that position is the curriculum, and as a result you soon come to appreciate in a deep way the wide range of amazing things that all your colleagues teach, including all sorts of areas that are far-removed from your own. You come to understand how important these other topics are to the students, to employers, to your colleagues, and then you begin to see how all these separate parts work together – and how they might be improved. It’s fascinating. You find out even more about how interesting your colleagues are, and I love that.
You’re also going to have a seat at the table when at least some of the important issues that come through the dean’s office are decided. If you care about the life of your institution – and I certainly do – this is priceless. There’s also the unexpected, one-off problems that emerge on a daily basis, challenges that somebody has to deal with. Sometimes those are unpleasant, but usually there’s a way of looking at it where it is, at bottom, a puzzle to be solved, one that can make life better for the students, or a colleague, or one of our fabulous staff members, and so on. If you can look at it that way, even the annoying stuff becomes rewarding. This may actually be the part that keeps me in the job, more than all the rest.
The downside of all this is that I have much less time than I would like for my scholarship. I am still very actively engaged, though, especially during summer. I’m nearing completion of a book project that has been my occupation for many years, a deep dive into the long-term history of the laws relating to detention and lethal force in the national security setting prior to 9/11. As for teaching, I still teach the same amount as I ever did. It’s the core of the job, and I just didn’t want to walk away, even temporarily, from any of my courses.