Why Lawyers Are Often a Diplomat’s Best Friends
The State Department’s Office of the Legal Adviser, which guides both institutional and individual decisions, isn’t immune to political pressure.
By ROBERT DOWNES | JANUARY 31, 2021
Dozens of U.S. career diplomats told The Diplomatic Diary last month that, during the Trump administration, they sought advice from the State Department’s Office of the Legal Adviser more frequently than ever before. The reason was the unusually large number of orders and actions by politically appointed ambassadors and other senior officials that crossed ethical and possibly legal lines. The diplomats needed counsel on how to protect themselves from potential prosecution without being punished by their bosses for insubordination.
Although not privy to these recent exchanges, I served in the legal office, in a position traditionally reserved for a mid-level Foreign Service officer with a law degree, in the mid-1990s, soon after Israelis and Palestinians signed the 1993 Oslo Peace Accords at the White House. Historically, the office has commanded significant respect across the U.S. government and has been described as its conscience in the area of international law. So my assumption is that my former colleagues — I’m now retired — are in the good hands. Staffed with about 200 attorneys and 100 additional personnel when I worked there, the office attracted more than 1,000 applicants for a handful of openings every year. In 2020, the Partnership for Public Service named one of its lawyers, Monica Ager Jacobsen, a finalist for its Service to America Award.
However, the office is not immune to political pressure. Its head — the State Department’s legal adviser — is a political appointee who requires Senate confirmation. Over the years, highly respected international law experts have held that position. There hasn’t been a permanent, Senate-confirmed incumbent since May 2019. Marik String, who is serving in an acting capacity, has limited experience, and members of Congress have questioned his ethics. During an investigation last year into then-Secretary of State Mike Pompeo’s dismissal of the department’s inspector general, Steve Linick, some members accused String of enabling Pompeo’s attempt to circumvent congressional limitations on arms sales to Saudi Arabia and the United Arab Emirates, and to have encouraged Linick to drop a probe into the matter.
During my time in the legal office, it was headed by Conrad Harper, a former president of the New York City Bar Association and former vice president of the American Law Institute. He led by example and provided world-class guidance to the staff. I learned more about international law during those three years than at any other time in my career. I worked on Near East and South Asian issues, including the multinational force in the Sinai peninsula that oversees the Israel-Egypt peace agreement, advising an undersecretary of state on setting up a Middle East development bank, helping proofread the 1994 Israel-Jordan peace treaty, and consulting on weapons sales to Pakistan.
The legal office advises the secretary of state and the department’s various bureaus on the legality and implications of the United States’ international policies and actions — across countries and regions. For example, a policy that might well fit the particular circumstances in a Central American country could set a negative precedent for our handling of a similar issue in Europe. Therefore, the office monitors policy proposals and advises on possible modifications or adjustments. The largest part of the office deals with international claims and investment disputes. During my tenure, it focused heavily on a decades-long effort to resolve claims linked to the 1979 Islamic revolution in Iran, which overthrew the shah, including damage to U.S. government property and the many aspects of U.S. interaction with the shah’s regime.
The part of the office dealing with international treaties is perhaps the most interesting. It’s the U.S. government’s institutional memory and keeper of its international obligations. Whenever I had a question regarding an obligation under an agreement, I’d consult one of the very knowledgeable treaty analysts. In addition to being the arbitrator of U.S. obligations, the office maintains a vault with the originals of all agreements.
It also handles the protocol activities for signing ceremonies to ensure the process complies with domestic and international law. It oversees the ratification process for treaties, such as the 1996 Comprehensive Nuclear Test Ban Treaty or the 1994 United Nations Convention on the Law of the Sea, which are among 37 treaties the United States has signed but the Senate hasn’t ratified. The legal office is the depository for more than 200 multilateral treaties, including those that established the United Nations and the International Atomic Energy Agency.
The part of the office that may receive more attention soon deals with government officials’ ethics and financial disclosures and actions. New political appointees need to inform the office of their investments and income sources, as well as potential conflicts of interest.
It remains to be seen whether Foreign Service officers turn over to the State Department’s inspector general any documentation they have kept regarding potential violations or questionable actions by Trump political appointees — and what files it contains showing or referencing advice from the Office of the Legal Adviser. Even if such violations are substantiated, it’s unlikely that appointees no longer in government will face any meaningful consequences.
Robert Downes is a retired senior Foreign Service officer. In addition to Nicaragua, Venezuela, Mexico and Thailand, he served in Germany and Australia.
The views and characterizations in this article belong to the author and don’t necessarily represent those of the U.S. government.