Stewart A. Baker is a partner in the Washington office of Steptoe & Johnson LLP. He returned to the firm following 3½ years at the Department of Homeland Security as its first Assistant Secretary for Policy.
At Homeland Security, Mr. Baker created and staffed the 250-person DHS Policy Directorate. He was responsible for policy analysis across the Department, as well as for the Department’s international affairs, strategic planning, and relationships with law enforcement and public advisory committees. This work required a broad understanding of all aspects of the Department’s activities, including maritime regulation, customs enforcement, immigration, identity management, SAFETY Act implementation, money laundering enforcement, government contracts, and regulation of travel and air transportation, and its role in the Committee on Foreign Investment in the United States (CFIUS).
While at DHS, Mr. Baker led successful negotiations with European and Middle Eastern governments over travel data, privacy, visa waiver, and related issues. He devised a new approach to visa-free travel, forged a congressional and interagency consensus on the plan, and negotiated acceptance with key governments.
He also managed the passage and implementation of the SAFE Ports Act, led the Department’s policy effort to reform federal immigration laws, and transformed the Department’s role in CFIUS, helping to drive the first rewrite of the CFIUS law and regulations in a generation.
Telecom, Internet & Media
Mr. Baker managed one of the nation’s premier technology law practices at Steptoe before accepting the DHS post. Described by The Washington Post as “one of the most techno-literate lawyers around,” Mr. Baker’s practice covers national security, electronic surveillance, law enforcement, export control encryption, and related technology issues. He has been a key advisor on US export controls and on foreign import controls on technology. He has also advised companies on the requirements imposed by CFIUS. In addition, he was responsible for spearheading the government-private sector coalition that permitted major telecommunications equipment manufacturers and carriers to break the decade-long deadlock with law enforcement on wiretapping of modern technology, permitting successful implementation of the Communications Assistance for Law Enforcement Act (CALEA).
In 2010 Mr. Baker’s memoir of his time at the DHS, Skating On Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism, was published by Hoover Press. Drawing on his experiences, Mr. Baker examines the technologies we love–jet travel, computer networks, and biotech–and finds that they are likely to empower new forms of terrorism unless the United States changes its current course a few degrees and overcomes resistance to change from business, foreign governments, and privacy advocates.
Mr. Baker’s practice includes issues relating to government regulation of international trade in high-technology products, and advice and practice under the antidumping and countervailing duty laws of United States, European Union, Canada, and Australia. He also counsels clients on issues involving foreign sovereign immunity, and compliance with the Foreign Corrupt Practices Act. Stemming from his role at DHS, Mr. Baker has a deep background in the international implications of U.S. security policy – from the disputes over U.S. collection of data from international businesses to the U.S. statutory command that all containers being shipped to the United States be scanned before leaving foreign ports.
Mr. Baker has handled the arbitration of claims exceeding a billion dollars, is a member of national and international rosters of arbitrators, and is the author of articles and a book on the United Nations Commission on International Trade Law arbitration rules.
Mr. Baker has had a number of significant successes in appellate litigation and appearances before the United States Supreme Court. He developed – and persuaded the Court to adopt – a new theory of constitutional federalism that remains the most vibrant 10th Amendment doctrine of the past 30 years. In addition to having filed many Supreme Court and appellate briefs, Mr. Baker was appointed by the Supreme Court to brief and argue Becker v. Montgomery and was recognized in the Court’s opinion for his “able” advocacy. He founded the State and Local Legal Center, which represents state and local governments before the Court; and his writings on appellate and constitutional issues have been cited in various opinions of the Court. His brief opposing the federal government in New York v. United States, 488 US 1041 (1992), was described by Assistant Attorney General Walter Dellinger as “one of the most influential amicus briefs ever filed in the Supreme Court.”