Photograph by Chris Leaman
David Kris was the United States’ top lawyer on counterterrorism and espionage for the first two years of the Obama administration, overseeing some of the nation’s biggest cases: “underwear bomber” Umar Farouk Abdulmutallab, the Times Square bomber, and the ring of Russian spies captured in the summer of 2010.
He became a government lawyer years before the 9/11 attacks, but the war on terror turned into the defining theme of his career. He left government in 2003, worked in private practice, and then returned in 2009 to run a new national-security division at the Justice Department that he had a hand in creating.
Kris, 44, graduated from Haverford College and earned his law degree at Harvard. He’s married with two children, ages ten and seven. A few weeks after leaving his post in March for a new job in Seattle, he sat down to talk about whether America is safer from terrorist attack, why the country’s legal system is still the envy of the world, and what he’ll miss most about life in Washington.
You came into the Justice Department before the 9/11 terrorist attacks, when terrorism wasn’t as high-profile a calling for an attorney. How did you get into this line of work?
I stumbled into it. In 2000, I’d been at Justice eight or nine years as a prosecutor, doing ordinary criminal-law trials and appeals. It was near the end of the Clinton administration. Normally there are vacancies at the end of an administration. So in the spring of 2000, I was asked out of the blue whether I’d be interested in being an associate deputy attorney general. You know, in Washington, the more words that are in your title, the less important it is.
My initial thought was under no circumstances would I be interested. I was a lawyer, and I thought I wouldn’t enjoy working in a bureaucratic environment. But after taking counsel from a number of friends and advisers, I decided I could safely take that job on a temporary detail.
But then when I started to develop the expertise and acquired the security clearances to do national-security work, there was a momentum effect. And I found that I just kept doing this kind of law because I’d already been doing it.
But was there something about these cases that made you want to stick with them?
To me it’s the part of law where the stakes are highest on both sides—for the government and for civil liberties. One of the reasons I went into law as opposed to philosophy, which is what I studied in college, is I wanted to engage in debate and reasoning in a way that had a profound impact. You can do that in national security.
You obviously had no idea what was ahead for you. Just a little more than a year into the job, 9/11 happened.
That was not a good day for anybody. As I recall, the attorney general, John Ashcroft, was out of town. The deputy attorney general, Larry Thompson, was in the department headquarters building. When the attacks occurred, he and certain others went to an off-site location. Most of the department was evacuated. But there was a need to leave some people behind in the Justice Department’s command center so we’d have some redundancy. And I was one of the relatively small group to stay behind.
I have a vivid recollection of just concluding, or sort of knowing in some kind of elemental way, that we’d surely be dead by lunchtime, because one of the next planes that would strike would be aimed at either us or the FBI building or both.
At one point I stepped out to telephone my wife and say goodbye to her. In a strange way, I just dealt with the events, which were overwhelming on a minute-by-minute basis, rather than thinking big thoughts.
You stayed in the government until 2003, then you spent six years as an attorney in the private sector. What drew you back to this new job as head of the National Security Division, which was established while you were out of government?
Most of the jobs I’ve had have been unplanned. But this is an exception. I was involved in establishing what I consider to be its legal underpinnings. In 2002, I worked on the case before a special surveillance court that dealt with how intelligence and law-enforcement agencies could share information about terrorism and espionage cases. The so-called wall that existed between those groups came down after that case, and that led directly to the creation of the National Security Division. When I had an opportunity to lead the division, I was very eager to do it.
I worked harder in this job than I did after 9/11. I didn’t think that would be possible. There was more for me to do, but it wasn’t as emotionally challenging as the immediate aftermath of 9/11.
What achievement are you proudest of?
The division really developed in a way that I think makes sense: taking down the wall and encouraging cooperation between people who employ different disciplines—intelligence and law enforcement—but who have a common mission of protecting against the threats of terrorism and espionage.
It’s very similar to the idea that underlay the creation of the Civil Rights Division. It didn’t matter back then whether you were protecting civil rights by criminal law enforcement or through civil litigation. The key was that you were pursuing civil rights, which at the time was arguably the Justice Department’s highest priority.
Is the United States safer from terrorist attacks today than it was on 9/11? And how do you measure that? The past two years have seen a dramatic increase in the number of attacks attempted on US soil, and some of them nearly succeeded.
It’s a difficult question because the threat we’re facing has evolved in a substantial way. In some ways it’s more dangerous and in others less. The period from spring of 2009 through 2010 was enormously intense. The statistics paint a very dramatic picture. We have first a proliferation of terrorist nodes. It used to be that al-Qaeda in the tribal regions of Pakistan was the key. Now we see al-Qaeda in Yemen and al-Shabab and affiliate elements in the Horn of Africa.
You also have increased use of the Internet, spreading the word of jihad without respect to geographic boundaries. That contributes to radicalization.
But some terrorist operatives are not as well trained and as commanded as before 9/11. That means they’re going to be less likely to be sophisticated or successful. On the other hand, there may be fewer opportunities for us to pick up on instructions being relayed from known terrorist sources, which means they may be harder to detect.
Next: Controversial interrogation tactics and what the law taught Kris about life