President George W. Bush signs the USA Patriot Act on October 26, 2001
Kevin Lamarque / Reuters
As the Trump administration vows to strengthen Washington's counterterrorism tactics, President Donald Trump plans to nominate a former George W. Bush administration official and an architect of the USA Patriot Act to be the top lawyer at the State Department, three current and former US officials told BuzzFeed News.
If confirmed, Jennifer Newstead, a former Justice Department official and a partner at Davis Polk & Wardwell in New York, would be in charge of a raft of thorny legal issues involving the most sensitive foreign policy and security challenges facing the United States.
The State Department Legal Adviser plays a key role in justifying the use of military force abroad, applying the laws of war to cyber intrusions, determining what represents a foreign military coup, and interpreting a maze of international treaties and obligations.
“It is critical that this person has integrity and independence, as well as a sound command of constitutional and human rights law,” Elizabeth Goitein, a national security lawyer at the Brennan Center for Justice, told BuzzFeed News.
Newstead joined the Justice Department in 2001 as a deputy assistant attorney general in the Office of Legal Policy and was credited with helping draft the USA Patriot Act and pitching it to members of Congress after the 9/11 terrorist attacks. The Patriot Act granted broad new surveillance and detention powers to law enforcement agencies and was amended In 2015 after years of criticism from civil liberties groups that it violated Americans’ privacy.
In a 2002 Justice Department press release, Viet Dinh, then the head of the Office of Legal Policy, praised Newstead’s “enhanced leadership duties and her excellent service on a range of issues — including helping craft the new U.S.A. Patriot Act to protect the United States against terror.”
Little is publicly available about Newstead’s role in crafting the contentious counterterrorism law and much of her subsequent career has been spent representing private companies facing government investigations or regulatory enforcement issues in the US and abroad.
Newstead did not respond to a request for comment.
John Yoo — a former Bush administration lawyer who authored controversial memos that provided legal justification for enhanced interrogation techniques, or torture, on detainees — wrote in his 2006 book “War by Other Means” that Newstead was the “day-to-day manager of the Patriot Act in Congress.” He described her as “a quick study and an effective advocate — she went from zero to sixty on terrorism in the days after 9/11.”
“Together, we worked on briefing Hill staff on the constitutionality of the Patriot Act,” Yoo wrote.
Yoo, now a professor at the University of California Berkeley School of Law, and Dinh, a founding partner of the law firm Bancroft PLLC in Washington, DC, did not return a request for comment.
The Trump administration’s positions on indefinite detention and surveillance are unclear. While the president has demanded that authorities have all the tools necessary to combat terrorism, he has also voiced skepticism about US surveillance practices after intelligence officials intercepted communications between his former National Security Adviser Michael Flynn and Russian Ambassador Sergey Kislyak.
In recent days, Trump’s top aides have been pressing Congress to renew the federal government’s warrantless surveillance program authorized under Section 702 of the Foreign Intelligence Surveillance Act. That program helped Turkey find the suspect of a terrorist attack that killed almost 40 people in an Istanbul nightclub, the FBI said Tuesday.
Lawmakers are also working to enact new legislation authorizing the Trump administration’s military efforts in Syria, where questions remain about the legal justification for US attacks against Syrian government forces and ISIS. If confirmed, Newstead will be required to defend those military actions internally and before Congress.
“There are big voices in the Senate who are going to want to ask her point blank: What legal authority does the US have in Syria?” a GOP Senate aide told BuzzFeed News.
In one of his final speeches in November, Brian Egan, the State Department’s previous Legal Adviser, spoke out against shutting down parts of the internet to combat cyber jihadists, an implicit rebuttal to comments Trump made during his presidential campaign.
Policymakers should be wary of “calls to restrict public access to or censor the Internet, or even — as some have suggested — to effectively shut down entire portions of the Web,” he said during a speech at Berkeley Law School. “Restricting the flow of ideas also inhibits spreading the values of understanding and mutual respect that offer one of the most powerful antidotes to the hateful and violent narratives propagated by terrorist groups.”
Newstead — who clerked for US Supreme Court Justice Stephen Breyer — did not serve in the State Department during her last go-around in government, but she did hold positions across the executive branch. After two years at the Justice Department, she served as a lawyer in the White House counsel’s office, and finally as the general counsel of the Office of Management and Budget.
Before going into government, Newstead was an associate at Davis Polk & Wardwell; she returned there in 2005.