IN THE COMMON DEFENSE Part 1 pps

Whether the United States is successful in preventing a nuclear, biological, or other security catastrophe depends on how effectively we wield the instruments of national security.. Emph

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IN THE COMMON DEFENSE

The United States faces the realistic and indefinite threat of catastrophic

ter-rorist attack Whether the United States is successful in preventing a nuclear,

biological, or other security catastrophe depends on how effectively we wield

the instruments of national security It will also depend on how effectively we

manage national security processes and whether we apply the law in a manner

that both enhances security and upholds our core constitutional values

There-fore, lawyers, not just presidents, generals, and intelligence officers, will decide

the outcome of this conflict

This book is essential for anyone wanting to understand national security law

and process The book includes chapters on constitutional law, the use of force,

and homeland security, presented in the context of today’s threats and as applied

to issues such as rendition and electronic surveillance Emphasis is placed on

national security process and intelligence, as well as the role of the lawyer

Writ-ten in a style accessible to both the general reader and the specialist, the book

offers a unique inside look at the practice of national security law from the

per-spective of a president’s national security lawyer

James E Baker is a judge on the United States Court of Appeals for the Armed

Forces and an adjunct professor at the Georgetown University Law Center and

University of Iowa College of Law, where he teaches national security law He

previously served as special assistant to the president and legal advisor to the

National Security Council, where he advised the president, the national security

advisor, and the National Security Council staff on U.S and international law

involving national security, including the use of force, intelligence, and terrorism

Judge Baker has also served as counsel to the President’s Foreign Intelligence

Advisory Board, an attorney advisor at the Department of State, an aide to a

U.S Senator, and an infantry officer in the United States Marine Corps He is

a recipient of the Colonel Nelson Drew Memorial Award, the National Security

Council’s highest honor, and co-author of Regulating Covert Action, as well as of

numerous articles on national security and criminal law He holds degrees from

Yale College and Yale Law School

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In the Common Defense

National Security Law for Perilous Times

James E Baker

iii

The Edinburgh Building, Cambridge CB2 8RU, UK

First published in print format

ISBN-13 978-0-521-87763-3

ISBN-13 978-0-511-28511-0

© James E Baker 2007

2007

Information on this title: www.cambridge.org/9780521877633

This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press

ISBN-10 0-511-28511-6

ISBN-10 0-521-87763-6

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org

hardback

eBook (EBL)eBook (EBL)hardback

To my teachers.

v

vi

Acknowledgments pagexi

Abbreviations xiii

Introduction 1

1 Perilous Times: Describing the Threat 8

2 The Meaning of National Security 13

C Security, the Rule of Law, and Constitutional Values 20

2 Constitutional Values and the Rule of Law 21

3 National Security Law 23

1 Legal Limits on the Exercise of Jurisdiction 47

2 Legal Policy and the Exercise of Jurisdiction 49

C Observations on the Practice of Constitutional Law 52

3 The Volume of Constitutional Decision 58

vii

viii Contents

4 Institutional and Political Oversight 62

5 Electronic Surveillance: Constitutional Law

Applied 71

B The Foreign Intelligence Surveillance Act, as Amended 78

6 National Security Process 99

A Constitutional Framework and Overview 100

C Extradition, Rendition, and Extraordinary Rendition:

8 Use of Military Force 176

f Humanitarian Intervention and Other Compelling

2 Application of Force – Methods and Means of

a Specific Rules and General Principles 214

b Legal Policy and the Application of the Law 219

D Three Whos: Who Decides? Who Pays? Who Acts? 261

Part II: Specific Regimes and Appraisal 274

2 Toward a Homeland Security Legal Strategy 294

x Contents

(2) Private Sector Responsibilities 299

b Principles to Inform Homeland Security

(2) Dual-Use Capacity/Dual Benefit Policy 302

(3) Risk Management, Not Risk Acceptance 303

10 The National Security Lawyer 307

B The Duty of the National Security Lawyer 317

xii Acknowledgments

Finally, thanks and appreciation go to my chamber’s teams and the

National Security Council teams with whom I have shared public service,

the law, and friendship Each team has participated in one form or another

in the substance, process, and practice reflected in this book

xiv Abbreviations

JTTF Joint Terrorism Task Force

LOAC law of armed conflict

IOB Intelligence Oversight Board

NCTC National Counterterrorism Center

NEST Nuclear Emergency Search Team

NIE National Intelligence Estimate

NIMS National Incident Management System

NORAD North American Air Defense Command

NPT Treaty on the Non-Proliferation of Nuclear Weapons

NRP National Response Plan

NSA National Security Agency

NSC National Security Council

NSPD National Security Presidential Directive

OHS Office of Homeland Security

OIPR Office of Intelligence Policy and Review (at the Department of

Justice)OLC Office of Legal Counsel (at the Department of Justice)

OMB Office of Management and Budget

OSD Office of the Secretary of Defense

OVP Office of the Vice President

PDD Presidential Decision Directive

PFIAB President’s Foreign Intelligence Advisory Board

POTUS President of the United States

PSI Proliferation Security Initiative

SCI sensitive compartmented information

SIGINT signals intelligence

SNS Strategic National Stockpile

TTIC Terrorism Threat Integration Center (now NCTC)

UCMJ Uniform Code of Military Justice

USC United States Code

WHO White House Office

WMD weapons of mass destruction

WPR War Powers Resolution

2 In the Common Defense

set substantive and procedural standards for individual and state behavior

in context With national security, context reflects threat Moreover,

some-times differences in legal outlook in fact reflect differences in perceptions

about the threat, and not differences regarding the law

The book focuses on the risk of a terrorist attack using weapons of mass

destruction, in particular a nuclear device This is not the only threat the

United States faces, nor the most certain But it is potentially the most

catas-trophic and it is the threat that defines the legal debate over the shape and

application of national security law

The book then explains why this threat presents the prospect of

end-less conflict and the corresponding pressure such a conflict will place on

principles embodied in the concept of liberty and law Chapter 1 closes by

describing how national security law and process can improve national

secu-rity while at the same time advancing the rule of law Hence the title: In the

Common Defense.

The phrase comes from the preamble to the Constitution:

We the People of the United States, in Order to form a more perfect

Union, establish Justice provide for the common defence and secure

the Blessings of Liberty to ourselves and our Posterity, do ordain and

establish this Constitution for the United States of America

The phrase captures a number of principles essential to national security

law At the outset, for example, the Constitution is a national security

docu-ment Seven of the enumerated legislative powers expressly relate to national

security Many others, such as the authority to raise taxes, indirectly do The

executive’s responsibilities start in Article 2, Section 2, with the president’s

designation as commander in chief followed immediately by the

specifica-tion that the militia shall serve under the president’s command “when called

into the actual Service of the United States.” The Constitution was forged in

conflict, and it has as a principal objective the security of the United States –

the common defense

The phrase also signifies that security is a shared endeavor The president

is the central and in some cases essential national security actor; however,

the three federal branches of government share this responsibility When it

comes to terrorism or pandemic disease, state and local governments share

this responsibility as well Just how this responsibility is divided is a critical

constitutional question discussed in Chapters 4 and 9

Two additional principles are evident First, national security has as a

goal the defense of liberty as well as of our physical security This

commit-ment is evident in the preamble, and it is affirmed in the oath governcommit-ment

lawyers take “to uphold and defend the Constitution.” Second, as the

pream-ble recognizes, the Constitution is a compact among the states established by

the people for specific purposes Consistent with the principle of federalism,

Introduction 3

the states have retained the police power under the Tenth Amendment Thus,

in homeland security context, the states share responsibility for the common

defense

Having framed the immediate threat and described the importance oflaw to security as well as to liberty, Chapter 2 steps back and considers

the meaning of “national security.” Within the law, invocation of the phrase

carries important normative and procedural implications “National

secu-rity,” for example, is the predicate for many of the president’s security tools,

including the intelligence, military, and homeland security instruments A

“national security” designation also determines the process of analysis and

decision What should qualify for such treatment and who should determine

if it qualifies for such treatment? The chapter concludes with consideration

of a working definition of “national security” that comprises an objective

element, physical security, and a subjective element, liberty – by which I

mean the rule of law founded on respect for constitutional values

The book then turns to the constitutional framework for national rity The nature and scope of the executive’s constitutional authority form

secu-the question in national security law today Foremost, is secu-the president’s

commander-in-chief authority subject to meaningful constitutional check

and balance, or is it in some sense inherent? The chapter reviews the

sources of constitutional law, including text and case law Certain

frame-work statutes, such as the National Security Act, also reflect constitutional

law, or at least rapprochements among the political branches, defining

con-stitutional expectations and limits

However, for a number of reasons constitutional law is often minable The application of constitutional law entails a significant amount

indeter-of choice There are few agreed upon statements indeter-of black-letter (settled)

law For example, although it is settled that the president is the

comman-der in chief – the Constitution expressly states so – lawyers do not agree

on what authority is derived from the commander-in-chief clause That is a

matter of interpretation, which necessarily reflects constitutional theory,

his-torical perspective, and, ultimately, the values practitioners believe should

inform the interpretation of constitutional authority Finally, where national

security is concerned, the courts are unlikely to resolve core constitutional

questions, deferring instead to the political branches, unless, perhaps, such

questions arise during the adjudication of specific cases involving tangible

individual rights

The substance and practice of constitutional law is illustrated with ence to electronic surveillance Chapter 5 reviews the legal and policy back-

refer-ground relevant to electronic surveillance as a domestic intelligence

instru-ment It then uses that background to illustrate how lawyers might apply

the tools of constitutional law – text, theory, gloss, and historical practice –

to shape arguments affirming or rejecting the president’s authorization of

4 In the Common Defense

surveillance outside the Foreign Intelligence Surveillance Act framework

The illustration also serves to identify the importance of legal policy and

values to the practice of national security law

As electronic surveillance illustrates, the meaningful application of law

requires that lawyers (and those who evaluate and apply their judgments)

understand where, how, and when legal decisions might be taken, and not

just where they are recorded Moreover, the central national security laws,

like the National Security Act, are procedural rather than substantive They

are intended to encourage deliberation at the same time that they provide

for timely decision But they do not guarantee a favorable substantive result

or outcome Without knowledge of the process of national security, one

cannot appraise whether the law has been applied and is guiding

decision-making to lawful result as well as whether it has been applied in a

man-ner that contributes to positive national security impact The focus in this

book is on the process of presidential decision-making and identification of

those factors that distinguish effective process from the merely bureaucratic

process

National security decision-making gravitates to the president for legal,

policy, and functional reasons This focus is magnified during wartime We

know this James Madison knew this Less understood is the degree to which

the practice of national security law is informal, undocumented, and

depen-dent on the moral integrity of the government’s officials The national

secu-rity lawyer may operate under great pressure He or she may find a tension

between the duty to apply the law faithfully and the duty to enable

deci-sionmakers to protect U.S security As the book articulates, the president’s

foremost duty and focus is on protecting the nation That means that the

lawyer bears primary responsibility for ensuring that the law is applied and

that constitutional values are preserved in the context of national security

practice

This tension is emblematic of the tensions endemic to national security

process: between speed and accuracy, between secrecy and accountability,

between headquarters and the field, and ultimately between security and

lib-erty This book considers how these tensions are addressed in three contexts:

the National Security Council process (Chapter 6), the military chain of

com-mand (Chapter 8), and the Homeland Security Council process (Chapter 9)

Whether these tensions are addressed effectively will determine whether

the United States identifies the intelligence indicators before the next 9/11,

or not, or prevents states such as North Korea and Iran from developing,

exploiting, or sharing nuclear weapons

The book next turns to the national security tools in the policymaker’s kit

Intelligence, meaning the sources and methods of gathering, analyzing, and

using information relevant to national security, is the predicate that informs

(or is supposed to inform) whether and how the other national security