Professor Ashley Deeks has returned to her home at the University of Virginia School of Law after taking a 17-month hiatus to serve as White House associate counsel and deputy legal adviser for President Joe Biden’s National Security Council.
At UVA, her primary research and teaching interests are in the areas of international law, national security, intelligence and the laws of war. Before joining academia, she spent 10 years working in various capacities at the U.S. State Department’s Office of the Legal Adviser, including as assistant legal adviser for political-military affairs, working on issues related to the law of armed conflict, the use of force, conventional weapons and the legal framework for the conflict with al-Qaida.
She sat down to talk about experience she gathered on her most recent detour to Washington working on sensitive national security issues, but let’s be honest: She couldn’t really say much about it.
What was the meat of your role at the National Security Council?
The National Security Council is an interagency coordinating body, first and foremost. So you’re trying to produce the best advice you can provide to senior members of the NSC and to the White House more broadly. You are less often developing the legal analysis yourself; instead, you are trying to get the wisdom of all the interagency general counsels on how to approach a particular problem or what courses of action are legally available. So you’re doing a lot of coordinating, a lot of consulting, bringing people together for meetings. We were very focused on reinstituting this interagency legal process when we got there in January 2021. That process, as I understand it, had fallen by the wayside under the prior administration. Together, we were helping produce documents that would go to the national security adviser (Jake Sullivan) to inform his policy advice to the president, or they might go to the White House counsel (at the time, Dana Remus) to inform the legal advice she was providing to the president.
Does that end up creating a clean slice of meat or a piece of sausage?
To some extent, most government policymaking has a sausage element to it. But I would describe sausage as a policy that’s really unclear or pulls in multiple directions at the same time. I don’t think that good policy, if done correctly, will produce sausage. It will sometimes produce compromise. But hopefully the compromise is clear and clean. If a policy is muddied, it will be hard for agencies to know exactly how to implement it.
Which areas of law would you need to specialize in to do your job?
It’s very helpful to have a basic understanding of international law, to understand how the sanctions regime works, to understand the War Powers Resolution. But if you have good relationships with your colleagues in other agencies, you can always pick up the phone and draw on their expertise. Maybe call a connection at the State Department if it seems like Congress has an interest in whether there’s a role for the International Criminal Court in pursuing war crimes that might be happening in Russia. You don’t have to have all this law in your head, but you do have to have good relationships and a good ability to spot legal issues.
Do you have any unclassified real-life examples of that?
The secretary of defense was considering steps to mandate vaccines for members of the armed forces when the vaccine had only been authorized for emergency use. It turns out there are authorities on this — which I had not known — but my colleagues at the Defense Department knew that because the issue had come up 20 years earlier with anthrax vaccines. There’s a lot of deep expertise in the agencies, and part of the trick of being a good lawyer at NSC is knowing where to find that expertise.
What was your favorite part about working there?
Walking in front of the White House grounds as the sun was coming up in the morning was a magnificent thing, and it really made me grateful that I had the opportunity to do this. You can’t help but feel motivated, even if you’re exhausted. It sounds cliched, but I think a lot of people in the building really did feel like it was a privilege to work there and felt a real weight of responsibility to the American people to make good decisions on their behalf. You have a rare opportunity to make decisions that have almost immediate impact on things that happen in the world.
Is there a path you would recommend for students who are interested in working in federal government?
For classes, I would say International Law, of course. I have a bias toward National Security Law, but things like Legislation and Regulation ― the sort of class that Bertrall Ross and Mike Gilbert teach ―and Federal Courts are also helpful, especially if you’re interested in going to the Justice Department. But a lot of these places are looking for people who are just incisive thinkers and writers, and you can get that in any law school class.
What national security issues are you most fired up about right now?
I’m tracking most closely the Mar-a-Lago documents issue, both because it’s in the headlines every day and because it tangibly relates to the parameters you’re bound by when you’re at the National Security Council, handling lots of classified information. It’s very troubling to imagine that there are people taking highly sensitive documents that we are trained to protect and treating them with total disregard.
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