08/01/1998
A Tale of Two Cities
A Cooley Godward attorney goes from Silicon Valley to the White House Situation Room for a year of government service.
Icy winter wind of Pennsylvania Avenue, endless government forms, Top Secret briefings, a fireside chat with Janet Reno, a strategy session with the British Home Secretary on multi-lateral drug interdiction. All this on Day One served notice that I had moved very far indeed from balmy Palo Alto and litigating employee raiding cases for the denizens of Silicon Valley.
On Day Two, I received a battle of the budget memorandum quite unlike anything in my Cooley Godward in-box over the preceding dozen years: "This is to inform you that neither an annual appropriation nor a continuing resolution has been enacted to provide funds for the regular operation of the Department of Justice. Consequently, the Department of Justice is without funds at midnight…Because your services are no longer needed for orderly suspension of operations…you are being placed in a furlough status."
While my furlough status lasted only a couple of snowy and deflating days before my presence at Justice was deemed essential to the national security, it afforded an opportunity for reflection upon my career move. It also tested my wife patriotism - already strained by government ethics rules mandating resignation of my law partnership and school calendars mandating coast-to-coast commuting for the upcoming year.
In late 1995, Attorney General Reno asked me to serve as Director of Executive Office for National Security - created a year earlier due to geometric growth in international law enforcement efforts against terrorism, drug trafficking, fugitives and transnational organized crime. In this capacity, I chaired and Executive Committee to coordinate international crime and foreign intelligence policy, implementing the Attorney General's priorities across Justice components: Federal Bureau of Investigation, Drug Enforcement Administration, Immigration and Naturalization Service, Criminal Division, Office of Legal Counsel, Legislative Affairs, and Intelligence Policy and Review. My office was responsible for liaison with foreign governments, multi-lateral treaty organizations, and the involved U.S. agencies - Department of State, Department of the Treasury, Department of Defense, Central Intelligence Agency, National Security Agency and National Security Counsel.
This was a world apart form employment law in Silicon Valley. It arose from my work in several past lives - post-Watergate Senate Intelligence Committee assassination investigations and agency oversight, foreign intelligence policy for Attorney General Griffin Bell in the Carter administration, federal prosecutions in the District of Columbia U.S. Attorney's Office and a Clinton transition team stint.
The job presented a rare opportunity to be present at the creation, as post-Cold War realities reshaped national security priorities for the U.S. and its allies, and new intra-governmental and international relationships were forged. In the wood-paneled, subterranean stillness of the White House Situation Room, threats of sophisticated transnational criminal and narcotics networks and the proliferation of weapons of mass destruction in the hands of international terrorists are now addressed with the same sense of urgency as Soviet bloc military threats a decade earlier.
To respond at Justice, Deputy Attorney General Jamie S. Gorelick directed me to chair several department working groups, e.g. coordination of multimillion-dollar U.S. programs training foreign justice and police systems and modernizing foreign criminal laws; expansion of FBI, DEA, and INS staffing abroad; and development of a multi-agency strategy for combating Nigerian criminal enterprising in the U.S.
Among the most intriguing moments in a year without client meetings and court dates:
- Careening downhill with Janet Reno in a death-defying Hungarian police motorcade, motorcycle escorts scattering motorists and pedestrians out of our path on a narrow winding road from the presidential compound to a Danube castle reception. This was the kick-off for a 28-nation conference on Russian and Eastern European organized crime that is penetrating the West. The site was the International Law Enforcement Academy in Budapest - a U.S. sponsored, multi-lateral center for training Eastern European police forces to counter technology adept criminal adversaries and operate in a democratic context.
- An unforgettable meeting with the gracious and incisive King Hussein, who came to the Attorney General's grand conference room to discuss assistance programs for the Jordanian judicial system.
- Poignant meetings with Sir Richard Goldstone of South Africa, Chief Prosecutor for the International War Crimes Tribunal for Bosnia, a tenacious and high-minded jurist whose mandate to prosecute atrocities was mired in regional hair-trigger tensions making service of a subpoena an act of war.
- Negotiations in Paris, via multi-lingual headphones, with the G-8 major industrial nations over an international terrorism action plan in the wake of the bombing of U.S. military personnel in Saudi Arabia and the TWA Flight 800 explosion: firearms and explosives controls; prevention of terrorist Internet communications; airport bomb detection; interdiction of terrorist financial transfers; expediting extraditions; and information exchange on terrorist chemical, biological and nuclear capabilities. No agreement in principle in my experience was ever so problematic as this simultaneous wordsmithing in French, German, Italian, Russian and Japanese.
- Conducting an "audit" for the Attorney General of foreign intelligence surveillance warrant applications to a court which operates in secrecy, appointed by the Chief Justice under legislative on which I labored years earlier in the Carter administration.
- Tense and agonized NSC meetings at the White House on evacuations from Northern Iraq of Kurds endangered by Saddam Hussein due to their U.S. support. The national security dilemma: balancing foreign policy needs - to steadfastly assist beleaguered peoples who stand by the U.S. - with law enforcement needs for security screening to avoid the nightmare of importing to the U.S. a group ripe for infiltration by Iraqi agents or terrorists capable of political bombings.
So now back in private practice, with the opportunity to reflect on a year of redeye flights from Washington D.C. to Palo Alto, devoid of billable hours, with lessons learned?
It almost goes without saying that an undeniable sense of satisfaction and purpose comes from daily engagement with urgent, fundamental public issues on a policy level. Criminal law enforcement at the Justice Department affords a sphere of operation where moral imperatives are clearer than in agencies grappling with shades of gray in complex social puzzles such as Social Security, welfare, health care and tax reform. While it is easier to wear a "white hat" at Justice, it is not at all easy to make a lasting impact on new forms of crime where multi-national gangs now operate with budget, technology and armaments akin to governments.
The effectiveness of the Justice Department and other agencies is hampered by the turf warfare that is waged everywhere in Washington. Within the Department, among departments and agencies, between Capitol Hill and the Executive, there is a constant tug of war for ownership of issues and the attendant command of budgetary resources and media attention. Sometimes that struggle derives from inescapable institutional frictions between agencies with overlapping authority. The State Department sees international law enforcement as an extension of diplomacy. The Justice Department sees it as an investigative landscape for the FBI and DEA. CIA now sees intelligence on international crime as post-Cold War raison d'être. There are also inevitable tensions between the Justice Department and the White House, regardless of which party or president is in residence. What Justice Department attorney view as pure legal questions will appear through the Western Wing lens as political or policy decisions.
However sincerely motivated the bureaucratic jostling, more time is spent in Washington negotiating control of an issue, and "touching bases" with interested parties than in solving the problem at hand. In an election year, decision-making dynamics are distorted further by Congress, where either side of the aisle is ready to turn any law enforcement decision into a clash between branches while cameras roll. From this vantage point, many a lawyer turned government policymaker daydreams wistfully about the freedom of action in private practice, where an attorney can set a course swiftly and invisibly in consultation with one principal client decisionmaker.
Private practice affords the satisfaction of resolving discrete and challenging problems of great import to clients who can sit across the table from you - and civil litigation has the worthy by-product of policing the marketplace. In government, one takes consolation from having any palpable effect on enormous, impersonal social ills that will persist long after the tenure of any administration.
For tea service in meetings, round-the-clock secretarial support, and user-friendly paychecks, private practice is way out in front. But government service cannot be beaten when it comes to 24-hour Command Center communications, daily intelligence reports, electronically impenetrable conference rooms - and a "to do" list that may matter to your grandchildren.
Frederick D. Baron is a partner in Cooley Godward's Palo Alto office and chair of the firm's Employment and Labor Practice Group. In 1995-1996, he served as associated deputy attorney general and director of the Executive Office for National Security at the Justice Department.