Published by The Lawfare Institute
in Cooperation With
Sen. John Warner, who died last week, was renowned for his integrity, moderation, political independence and expertise on national security issues.
Although Warner spent 35 years as a civilian official in elected or appointed positions (30 years in the Senate and five years as secretary and under secretary of the Navy), his political and policy views were shaped by his early training as a lawyer (first as an assistant U.S. attorney and then as a lawyer in private practice) and service in the military (as a Navy enlisted man in World War II and as an officer in the Korean War). He remained steadfastly committed to the rule of law and the federal workforce and especially to military veterans.
I had the opportunity to be one of Warner’s first interns in the Senate in the summer of 1980 while I was still in college. Twenty-five years later, he graciously agreed to introduce me at my confirmation hearing to be legal adviser. In his early days, most of us interns hoped more to catch a glimpse of his more famous wife, Elizabeth Taylor, than to work with the freshman senator on prominent defense issues. But Warner worked hard and grew exponentially in stature during his 30 years in the Senate. I was able to work with him on a variety of national security matters while he was a senator and after his retirement, each of which demonstrated Warner’s willingness to place the nation’s security over partisan politics.
Warner Intelligence Commission
Warner is best known for his steady leadership of the Senate Armed Services Committee and expertise on defense matters, but he also had a keen interest in intelligence issues. He served for many years on the Senate Intelligence Committee, including as vice chairman from 1993 to1994. During that period, in a now little-remembered episode, he stepped in to urge a “cooling off period” in response to overheated calls from some members of Congress to slash the intelligence budget (and even to abolish the CIA) after the end of the Cold War. Warner drafted legislation to create a blue-ribbon commission to conduct a “thorough, deliberative, and non-partisan evaluation” of future U.S. intelligence needs and the appropriate organization of the intelligence community. I served as the general counsel of the resulting “Commission on the Rules and Capabilities of the U.S. Intelligence Community,” which included Warner as a member and was chaired by former Secretaries of Defense Les Aspin (until his death) and Harold Brown. In 1996, the commission produced a report that, among other things, rejected the creation of a Director of National Intelligence but recommended changes in legislation (later enacted) to increase the authority of the then-Director of Central Intelligence to manage the Intelligence Community. It was typical of Warner that, rather than succumb to the political rhetoric of the day, he took a longer view of our national security.
Detainee Treatment Act
Ten years later, during the period when I was legal adviser, Warner demonstrated leadership again to insist on legal rights for terror suspects in U.S. custody after 9/11, pushing back on a harder line approach advocated by some members of the Bush administration. Warner joined with Sens. John McCain and Lindsey Graham to draft and shepherd through the Detainee Treatment Act (DTA) of 2005. The DTA, which passed the Senate by a 90-9 vote, prohibited cruel, inhuman or degrading treatment of any “individual in the custody or under the physical control of the United States government, regardless of nationality or physical location.” The DTA aligned with policies I had advocated inside the administration and that had been included as a recommendation of the 9/11 Commission. President Bush signed the DTA, but at the urging of the vice president appended the highly controversial signing statement that he would interpret the act consistent with his constitutional authorities. In response to the president’s statement, Sens. Warner and McCain issued a pointed statement saying, “We believe the president understands Congress’ intent in passing by very large majorities legislation governing the treatment of detainees .... Our committee intends through strict oversight to monitor the administration’s implementation of the new law.” (Some of the internal executive branch differences over the DTA were exposed in 2017 during the Senate confirmation hearings for Neil Gorsuch, when the Trump administration released email exchanges between me and Gorsuch, then a senior Justice Department official, in which I urged the Justice Department to oppose the signing statement.)
Law of the Sea Convention
After Warner’s retirement in 2009, I teamed up with him again in 2012 to support Senate approval of the U.N. Convention on the Law of the Sea, during hearings chaired by Sen. John Kerry, then chairman of the Senate Foreign Relations Committee. As a former secretary of the Navy, Warner had long supported the Law of the Sea Convention and had chaired hearings on the treaty when he was chairman of the Armed Services Committee in 2004. I testified in favor of the convention, and Senator Warner appeared in his personal capacity as an ex-senator to show support for the treaty, despite opposition from some conservatives.
I reunited with Warner a final time in 2020 when he joined the statement of more than 100 former Republican national security officials who said that Donald Trump should not be reelected as president and that we would vote for Joe Biden. When I called to ask him to join the statement, he said he would be happy to join but no longer considered himself to be a Republican.
For decades, one of my favorite lines of poetry has been from Henry Wadsworth Longfellow’s 1838 “Psalm of Life”:
Lives of great men all remind us
We can make our lives sublime,
And, departing, leave behind us
Footprints on the sands of time;
The poem can be panned as excessively sentimental and obviously not gender neutral, but Longfellow does remind us that great leaders can leave their mark and serve as an inspiration for succeeding generations. John Warner was a great national security leader and lawyer who left footprints on the sands of time. We should all aspire to be more like Sen. Warner.