Intelligence Surveillance & Privacy

Shane Harris on Heritage and Lawfare

Benjamin Wittes
Thursday, October 17, 2013, 10:03 AM

I really don't know what to say about this piece that Shane Harris posted last night at Foreign Policy, so I'm largely going to let it speak for itself:

Published by The Lawfare Institute
in Cooperation With

I really don't know what to say about this piece that Shane Harris posted last night at Foreign Policy, so I'm largely going to let it speak for itself:

Ever since ex-senator and Tea Party kingmaker Jim DeMint took over the Heritage Foundation earlier this year, mainstream Republicans have been fretting that he'd turn the prominent conservative think tank into a political proxy for the most extreme elements of the GOP. The debt-deniers and defund-Obamacare die-hards who propelled the government into a shutdown have found a political, if not quite intellectual center of gravity at Heritage. Now, hawkish Republicans who have long embraced strong national security authorities have reason to believe that Heritage is mounting an opposition on that front, too.

Recently, Heritage refused to publish two papers about the National Security Agency's surveillance programs written by a prominent conservative attorney. Why? Because he concluded that the programs were legal and constitutional, according to sources familiar with the matter. It was a surprising move for a think tank that has supported extension of the Patriot Act -- which authorizes some of NSA's activities -- and has long been associated with right-of-center positions on national security and foreign policy.

. . .

But the think tank's decision not to publish Bradbury's opinions did not bury them.

Cully Stimson, a senior Defense Department official in the Bush administration who now runs Heritage's national security law program, called Benjamin Wittes, the editor in chief of the national security blog Lawfare and a senior fellow at the Brookings Institution.

Stimson "asked me whether Lawfare might be interested in [the papers], and I was delighted to publish them," Wittes told The Cable. "We asked Steve to consolidate them into a single paper, and there were some subsequent revisions as well because of the document release that took place in the intervening period," Wittes said, referring to the government's decision in August to declassify a large number of documents about NSA programs.

Wittes said the final paper "had its origins in a project that did not come to fruition at Heritage." He referred all questions to the think tank "about what the dispute was internally."

I don't want to comment on what went on at Heritage, to which I was obviously not a party and about which I claim no first-hand knowledge. I do, however, have strong feelings on two points: First, the Lawfare Research Paper Series has no higher purpose than to publish high-quality, policy-relevant, material by scholars and practitioners that, for whatever reason, other institutions cannot or will not bring to press. Bradbury's papers---which we consolidated into a single paper---were precisely the kind of work we created the series in order to publish.

Second, I want to say a word about the role that Cully Stimson has played at Heritage: Cully has been a disruptive voice in the stale left-right divide over national security legal issues. Heritage, under his leadership, has hosted a number of first-rate events, including a major speech by then-Pentagon General Counsel Jeh Johnson opposing the efforts by congressional Republicans to micromanage detention policy. Cully himself has refused to embrace the more foolish detention policies that have oddly become orthodoxy in certain conservative circles. Bradbury's papers were fully in keeping with the sort of program Cully runs and has been building at Heritage. It would be a real shame if, as Shane suggests in this piece, Heritage is no longer a hospitable place for such work.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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