The following are excerpts from a presentation at the American Bar Association’s Annual Meeting in Toronto on Saturday August 6th. The Q&A panel session entitled, International Business Lawyer of Mystery – Insiders Guide to Legal Career in National Defence and Security Industries, shared perspectives on the trends and expansion of this legal practice area post 9/11, and provided insights for lawyers considering work within the field of National Defence and National Security Industries. This was delivered with other papers by Frank Jimenez (Vice President and General Counsel of ITT Corp.), Charles Dunlap (Associate Director, Center on Law, Ethics and National Security, Duke University School of Law), James Swanson (ABA Senior Director and retired U.S. Air Force Brigadier General), Jarisse Sanborn (retired U.S Air Force Brigadier General and staff judge advocate), Jack Rives (ABA executive director and retired judge advocate general of the U.S. Air Force) and James Durant (director of legal services for the U.K.-based 3rd Air Force). The presentations made were designed to answer specific questions posed to the panellists.
Q: What is the role of business lawyers in National Security?
A: There are a vast variety of roles for lawyers in this field. One must appreciate that there are lawyers required in both the public and private sectors. The vast field can include everything from drafting legislation and regulations, to prosecutions on criminal or terrorist related activities and violence, advising national security agencies on what one can and cannot do, addressing issues relating to privacy, dealing with cyber security, government procurement issue relating to products and services in the field of National Security and public safety, and many more.
There is room for business lawyers in this area when dealing with critical infrastructure construction and development, protecting critical energy infrastructure, dealing with regulatory issues touching National Security in the fields of transportation, energy, intellectual property, the protection or prosecution of individuals in the context of citizenship and immigration matters. One must realise the important role of business lawyers as well in dealing with tendering law when addressing government contracts. One need only think of such companies as Boeing, Raytheon, MacDonald Dettwiler, Pratt and Whitney, and Siemens, so many and others with a global reach with significant roles in this field. Highly sensitive commercial information comes about from working with these companies’ services and goods. The value of these goods and services cannot be over-emphasized in the context of Nati onal Security and public safety.
Then again, there are also those that must focus intensely on contract matters in the field of defence procurement contracts and in dealing with detailed terms and conditions therein. Often, to be able to work on these contracts, one must have a security clearance to consider and appreciate the sensitive and classified elements which make up important portions of such agreements.
Q: Describe key business aspects one must consider today.
A: When dealing with safety and security, especially in a post-9/11 world, there is a recognition the cost of doing business has gone up to meet security requirements. Time delays are also a natural result of security issues. While this can be frustrating when one wants to move goods and services more quickly across our borders, it has been the driver and excuse, sometimes too often, as to why costs are higher or delays occur in delivery. (A real challenge and one that I hope we will be better addressing from recent years). When the number one goal is safety and security, everything else comes second. There really appears to be no other primary criteria or focus.
A portion of my work has concentrated upon defence procurement. This has required a special added dimension which arises as a result of the handling and safeguarding of classified information. Classified material needs to be protected and only certain people will have access if they have the necessary security clearances. Facilities that store classified information are also subject to specific rules and monitoring. It is also important to ensure appropriate corporate information is available and the specifics of a corporation’s ownership are well understood and meet the requirements of government personnel. Issues regarding foreign ownership can cause difficulties. When dealing with the tendering of bids or RFPs, confidential information may dictate that individuals working on these bids and any future work have appropriate security clearance.
Q: What have been the biggest areas of growth in National Defence and Security industries since 9/11?
A: Where does one start? Airports, government buildings, open government and public places; all these have had to be modified as a result of more stringent security requirements. Also, the field of cyber security. Systems have to be continuously re-designed to protect government and private sector assets.
There is and will continue to be a tension between privacy and National Security issues. This is a growing field in dealing with access to information and privacy matters and the balance between protecting individual citizens versus the collective. We will see further opportunities to work through these legal principles and public policy. There will certainly be discussion and controversy.
Providing advice to government and its agencies as legal counsel, whether dealing with what security intelligence agencies can and can not do, those that are involved in protecting critical assets, working on behalf of international companies that have no choice but to take into account the public safety and security requirements. Whether you are in an energy, high technology or engineering company or an organization that is involved in training military personnel or teachers, there are aspects that will require expertise in dealing with classified information and the field of National Security. Educating a new cadre of professionals so that they may become advisors to government in such departments as Justice, Immigration and Citizenship, Transportation, Finance (when tracking proceeds of crime/ investigating money laundering, identifying funds going to organizations or groups internat ionally or domestically), Canadian Border Services Agency, Foreign Affairs, Defence, the RCMP, CSIS, CSE (signal intelligence) will become more vital. These are all government entities where “top notch” professionals will be needed to address a multitude of national security and public safety challenges.
Q: How does one position oneself to represent defence contractors or other vendors with security clearance?
A: Work with someone who knows what they are doing; either in government or in private practice. One would want to get exposed to those already working in this area. It is not always easy but one should find a professional to work along side who has experience, expertise and a solid background in working with companies or governments in this area. In my firm, I can think of Ron Lunau, and Phuong Ngo who are second to none in expertise in dealing with the Defence Production Act, related security requirements and legislation which must be met in dealing with agreements on internal trade, dealing with existing agreements between the provinces and dealing with international trade. And then one cannot forget the other municipal and provincial laws that touch on procurement issues or security matters generally. So a good mentor or someone to learn from is key.
Critical to note as well that if you acquire such experience in government, it can be highly transferable. The trick is to get the right position within government that then enables you to appreciate the intricacies of such a specialized legal practice. This practice would certainly be focused on contract law, rules relating to security matters, trade laws, (at all levels) and ITAR / controlled goods. This set of issues is indeed more in the business and trade context.
Q: Where should one start if someone wishes to work in National Defence and security industries without joining the military?
A: Again, as noted above, one may work within government, with private sector clients, such as defence contractors, transportation companies, energy companies, professional firms (law or consulting) or through academia. The study of International Affairs and National Security can be intellectually stimulating and the possibilities are vast in these fields. University programs at Carleton’s Norman Paterson School of International Affairs, Fletcher School at Tufts, and the Kennedy School at Harvard, are places to consider seriously. The federal government, provincial governments, one of the agencies of government that focuses on National Security (CSIS, RCMP, CBSA, CATSA), are all logical avenues to pursue work following these studies.
Q: What are the effects of terror on a personal level and a business level?
A: The effects are obviously devastating and horrific. All one needs to do is simply reflect on the images of 9/11, the Lockerbie bombing, the Air India bombing, random suicide attacks in Israel, bombings in Madrid and London. Susheel Gupta, the Vice Chair of the Canadian Human Rights Commission, who I met through my legal representation of the families of Air India, shares with deep emotion and in graphic detail how his life was forever affected by the loss of his mother on Air India Flight 182.
In a post-9/11 world, the effects on the economy and on the personal safety and security of our population is enormous. Just consider the time we must spend today to consider security matters in the national interest. The airlines, the hospitality industry, financial institutions, energy and technology companies. Businesses at all levels are affected by terror or the threat of terror. In the end, those legal professionals working in this field balance the rule of law, work to prevent acts of terrorism and protect the public from threats of terrorism. Our professionals balance Human Rights and National Security requirements daily. As expressed by all the preceding speakers on this distinguished panel, this is a field that can be personally enriching and professionally rewarding. One certainly feels that a contribution can and is being made by engaging in a professional life that includes a focus on the protection and safety of others. It has been a rewarding role for me throughout my career and it has also been a privilege to work with those who recognize the responsibility they carry through their work in protecting the public.