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Remarks at the Cornell University Law School

As Delivered by Deputy Secretary of Defense William Lynn, III, Cornell University Law School, Ithaca, New York, Wednesday, November 18, 2009

Thank you very much, Dean Schwab, for that kind introduction. And thanks to Lisbon and Ashley for organizing this and bringing me back to Cornell.

As the dean said, I'm quite certain I've taken more than one class here, and I'm pretty sure this is where I did moot court. So if, during the questions, I get that deer-in-the-headlights look, it's just a flashback. (Laughter.)

When I first came to Cornell when I was a first-year student, I had been traveling and I accepted fairly late and ended up in a house with second-year law students, who taught me a lot about law school. And one of the things they taught me was the phenomenon of ding letters; that is -- I don't know if you still call them that, but when you applied to law firms for summer associate positions, you got a letter back from the law firm. And the second-year students were in the midst of this, and when they got rejections, these ding letters, they put them up on the wall so they could share them with the group.

And what was interesting, I don't think the law firms realized they were doing this, because all of these letters were the same. They all said, "Dear so and so, you know, your really strong credentials and sharp intellect really impressed the firm's interview committee." And they went on a little bit about your qualifications.

And then, in the second paragraph, they'd always begin saying, "We regret to inform you that, due to the overwhelming number of qualified applicants this year, we're unable to offer you a position for this summer." And then they went on to the third paragraph, which was also the same. "So though we're unable to offer you a summer clerkship, we hope that during your third year you'll consider applying to us for full-time employment."

Well, of course, they didn't mean that. (Laughter.) And the reason we know all of them except one didn't mean it is because on one of the letters, the attorney who signed it wrote in the margin, "We really mean this." (Laughter.) It was the only one that was written. I hope I mean what I say-- I'll write it in the margins of the speech if it helps.
It is fun to be back at Myron Taylor, although in some ways I have stronger memories of

Collegetown than Myron Taylor. (Laughter.) For those of you on the Law Review, that's where the bars are. (Laughter.) But somehow, as the dean said, I made it through here and through Princeton and didn't quite take on a legal career, but went into public service through Capitol Hill and now at the Department of Defense. I never really have practiced law but I did get one of those summer clerkships. I thought that counted, but I'm not sure it did.

I do remember, though, one of the professors here at Cornell. He actually wasn't a law professor. It was George Quester, a professor of government at the time; and took my first course in defense studies as part of the time here at the law school. As you can see, it stuck.
As deputy secretary, my responsibilities are varied, but they're actually never far from the law. My chief of staff, who is here, Sandy Hodgkinson, is a lawyer. My wife is also a lawyer, and she's actually the one who keeps telling me I'm not a real lawyer -- (laughter) -- since I don't practice. And I have to admit, I haven't paid the active dues; I pay the inactive dues for the D.C. Bar. But I have used my legal training, whether it was in think tanks or on Capitol Hill or now in the department. And indeed, it's very difficult to get far from the law when you're in Washington.

In the Defense Department, legal instruments are central to our ability to project force, to protect our interests abroad. In fact, outsiders are often taken aback by how many lawyers we have in the department. We have 7,000 lawyers, and those just the civilians. We have another 3,000 military uniformed lawyers. So the Defense Department, in fact, has more lawyers than the Foreign Service has Foreign Service officers. So we have a substantial number.

You also may be interested to know the varied roles they play. With more than 3 million civilian and uniformed employees and billions of dollars of contracts to oversee, many lawyers focus on administrative, personnel, and contract law. Lawyers also support my earlier world, the budget process. Judge advocates within our services administer the Uniform Code of Military Justice. Lawyers trained in intelligence and national-security law help structure our most sensitive national-security programs. And lawyers are even asked to adjudicate decisions about when and how to use force.

Every mission that is likely to involve the capture or killing of an enemy, such as an air strike or offensive maneuver, must be reviewed by a lawyer to ensure that the use of force is proportionate to the threat and complies with standing regulation and the laws of war.
We even deploy our lawyers before we deploy our troops. For each country we undertake joint missions with, base troops in or transit supplies through, our department negotiates a status-of-forces agreement or some other appropriate legal arrangement.

These agreements delineate the rights of our troops while overseas, the ways in which we will respect the sovereignty of the host nation, and what responsibilities and obligations are incumbent upon each party.

You may recall that the last status-of-forces agreement we negotiated with Iraq proved particularly contentious. Close watchers of Afghanistan also know that arrangements with neighboring countries to supply our troops have not come easily. In both cases, so much more than legalities were at stake. Legal matters, as always, are linked to important policy questions about the threats we face and the best ways to meet them. In national-security policy, as elsewhere, legal instruments are often where the rubber meets the road.

Since I was sworn into office, I've spent more hours than I want to think about addressing two particular types of legal issues that I wanted to talk about with you today. One involves the treatment of detainees and the other involves cyber warfare.

We're only eight years removed from the deadliest attack on American soil in our history. Although we've made great strides in disrupting and dismantling al Qaeda and other violent extremist groups, the threat they pose to our homeland will be with us for some time. We're taking the fight directly to the terrorists who are attacking us. We are offering aid and assistance to governments threatened by extremist movements. And we are engaged in the Muslim world, as the president did in his historic speech in Cairo. And in that role, diplomacy may well be our most powerful tool.

But enemies that do not abide by the rules of war present new challenges to our application of the law. To defeat them, we need new tools. We need the right tools. We need tools consistent with our values and our laws. We need tools that are respected by our allies and that we ourselves can use in good conscience.

As President Obama said, "Faced with an uncertain threat, our government made a series of hasty decisions, decisions based on fear rather than foresight, in the aftermath of 9/11."
Upon assuming office, President Obama reversed two of those decisions. He banned what were then called enhanced interrogation techniques, telling the American people and the world, "Without exception or equivocation, we do not torture."

He also directed the closing of the prison at Guantanamo Bay. This second decision has turned into a central part of my duties at the Department of Defense. Since February, I have been working with the White House, the Department of Justice, the Department of State and other agencies in government to close Guantanamo Bay and to determine the status of the remaining 200-plus detainees there.

As the president said in his address at the National Archives in May, detainees are going to fall into five categories. First, those who have violated U.S. criminal laws, where feasible, will be tried in U.S. federal courts. Last week, the attorney general announced that several perpetrators of 9/11 fall into that category, and they have been referred for prosecution in New York City.

The second category of detainees involves detainees who have violated the laws of war and are therefore best dealt with through military commissions. In that context, we will be pursuing, as a high priority, justice for the alleged bombers of the USS Cole.

Now, military commissions have a long history in the United States. They date back to George Washington and the Civil War. In May, the President called for reform of the military commissions to ensure that they are lawful, fair and effective prosecutorial forums. The Military Commissions Act of 2009 Congress just passed has, I think, achieved the goal that the President set out, and we plan to utilize the processes and procedures of those military commissions as Congress sets them out.

The third category of detainees consists of those who have been ordered released by U.S. courts. Those for whom the courts have spoken will and by law have to be released and sent back to their host nations.

The fourth category of detainees consists of those who we've determined can be safely transferred to other countries. To accomplish those transfers, we seek two assurances; one, of humane treatment, and a second, of appropriate security measures.

Finally, the fifth category is the most trying. These are detainees who pose a clear threat and a continuing threat to the American people but who, for various reasons, can't be prosecuted in either federal courts or military commissions. These are the people the President said who, in effect, remain at war with the United States.

Devising a fair, legitimate and constitutionally valid framework for the continued detention of these detainees is not easy, but President Obama views this as one of the most consequential issues of his Presidency, one that will set a precedent for years to come. We are making steady progress toward a fair and lawful detention policy, and ultimately toward the closure of Guantanamo Bay.

Let me talk about cyber warfare. This is another area filled with important legal questions, and indeed new legal questions. To start with, there's no exaggerating our nation's dependence on information networks. This is especially true of the Department of Defense. Command and control of our forces, intelligence and logistics, the weapons and technologies we field, they all depend on computer systems and networks.

Although IT enables tremendous gains in our military capabilities, it is also a double-edged sword. As any company that's suffered a loss from a cyber intrusion or any individual who has been a victim of identity theft will understand, there are both ups and downs to reliance on information technology.

The Defense Department networks make a tempting target. We have 15,000 networks. We have 7 million computer devices, whether they're laptops, servers, BlackBerrys, all sorts of devices, and all of these are under threat. This is not an emerging threat. It's not a future threat. It's not a future contingency. The cyber threat that we face is here today.

More than 100 foreign intelligence organizations are trying to hack into U.S. systems. Foreign governments are developing offensive cyber capabilities. Some already have the capacity to disrupt elements of U.S. information infrastructure.

And the cyber threat does not end with states. Organized criminal groups and individual hackers are building global networks of compromised computers -- these are botnets and zombies -- and renting them to the highest bidders, in essence becoming 21st century cyber mercenaries. And terrorist groups are active on thousands of websites. Indeed, al Qaeda and others have expressed a desire to unleash coordinated cyber attacks on the United States itself.

So our defense networks are under attack each and every day. They are probed thousands of times a week. They are scanned millions of times in a single day. And the frequency and the sophistication of these attacks is increasing exponentially.

The Defense Department has formally recognized cyberspace for what it is -- a domain, similar to land, sea, air and space, a domain that we depend upon and that we need to protect. Just as we need freedom of navigation of the seas, we need freedom of movement online.

But creating a legal framework to govern our actions in the cyber domain is exceedingly difficult. Many cyber attacks on U.S. networks originate overseas. Botnet attacks involve computers all over the world, and they often involve individuals who are unwitting that they are participating in a cyber attack. The laws of war simply did not anticipate the Internet.

Defending ourselves in this global environment raises complex issues of national sovereignty and international law. For example, is a cyber attack an act of war? What kind of response is appropriate and justified? What kind of notification -- permission, if you will -- is required when using communications or cyber actions that transcend boarders?

These issues are made even more complex by the fact that the cyber domain, unlike land, sea, air and space, is man-made, and it's owned primarily by private entities. Still further, it is often very difficult to determine with any certainty the origin of cyber attacks.

So in this cyber domain, we face enormous foundational challenges not only to develop an appropriate legal framework, but also a coherent military doctrine. Toward that end, DOD is not only developing new cyber capabilities, but also a new military command to focus exclusively on cyber operations and activities.

Let me turn to a few other national-security challenges that we face in the department today. I just returned from Iraq and Afghanistan. I want to tell you that our men and women in uniform there are putting themselves at great risk to accomplish the missions that we've asked them to undertake. Many of them, probably most of them, are younger than you. Not all of them will come home.

Because of their tremendous sacrifice, plans for a responsible draw-down in Iraq are on track. Iraq's security forces are protecting its citizens, and its government continues to rebuild. Violence still occurs, but there's less of it than before. We're making progress.

In Afghanistan, our mission is not yet complete. Al Qaeda and its allies are active in the broader region. The Taliban continues to destabilize the governments of both Afghanistan and Pakistan. Our goal, articulated by President Obama, is to disrupt, dismantle and defeat al Qaeda and its allies. And to assist in that fight, we need to confront the Taliban.

To achieve this goal, we are carrying out aggressive counterinsurgency and counterterrorism operations, increasing our support to the Afghani security forces and distributing $1.5 billion per year in aid to Pakistan.

The threats to our security, however, do not end in South Asia. We also face emerging or resurgent powers with ambitions in their spheres of influence, including Russia, China, North Korea and Iran. The proliferation of weapons of mass destruction, both among states and non-state actors, is a serious concern. Piracy and cyber attacks are threatening the global commons. Climate change, population growth and resource scarcity, especially regarding energy, will increasingly drive the conflicts of tomorrow.

The bottom line is that the global security environment is growing more complicated, even as our prosperity and our well-being are increasingly tied to it, which brings me to you, the students sitting here in the room. I think we find service in our military is too rarely considered by undergraduates today as a possible career choice or a way to do good in this world.

Service in the civilian government has similarly been eclipsed of late, as more students head to Wall Street or other management consultancies. Civilian agencies for the government don't participate in on-campus recruiting like the private firms do. They don't offer the same kinds of signing bonuses. But their needs are tremendous, and the opportunities to serve in them are every bit as dynamic.

The thing about government is that there is always more to do than there is staff available. In this environment, young, energetic policy aides gain responsibility quickly. So I urge you to think broadly about how you might contribute to this world and be open to the widest range of professional responsibilities and possibilities.

No matter what you do, the degree you are working on so hard will serve you well. I might not have used my legal training formally. I was never in a courtroom. I never worked for a law firm, unless you count that summer. But it's been invaluable to me on Capitol Hill, in think tanks, and now in the Pentagon.

So as you prepare to leave Cornell, consider military or civilian service as an option. I don't know what government ding letters look like; probably like ding letters from law firms. But if you get to the second paragraph and they actually offer you a slot, I can assure you it will be fascinating work and immensely satisfying.

So get out of Myron Taylor Hall, go down to Collegetown, have a beer, and think about what you want your future to be. This world is beset by challenges and by injustice on a scale that's hard to fathom. As members of a profession that is fundamentally concerned with justice, there is a lot to be gained by venturing out into the wider world and using your skills to improve our lot. I urge you to follow that path outward wherever it may take you.

Thanks very much for your attention. (Applause.)

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