What have we, as legal scholars, learned and contributed on national security law during the past 15 years? And is the scholarly lens rightly focused today? Not long ago, I had cause to reflect on these questions. I was attending a conference at a highly regarded law school at which some of the most respected commentators on national security presented new papers. Expertly curated, uniformly characterized by thoughtful, penetrating scholarship, the conference nevertheless left me sobered and uncertain.

Two traits of the papers presented leapt out. First, a supermajority of papers eschewed a focus on either the substance of primary conduct rules (say, who can be detained, or when surveillance requires a warrant), the interaction of the branches, or social or political dynamics in the world beyond Washington. Rather, they trained on what scholars call “the internal separation of powers” – arrangements within the executive branch that purport to promote desirable normative values such as legality, rights, and accountability. Although I’ve made no careful quantification, it seems to me this is a trend. The papers I saw presented trail in the wake of many recent articles on internal topics ranging from inspectors general, information leaks, departmental ‘offices of goodness,’ and the ‘administrative governance’ of the Fourth Amendment.

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