National Security Law Advice to the New Administration

By any measure, the period between September 11, 2001, and the 2008 presidential election witnessed an unprecedented tangle of controversies at the intersection of national security law and policy. The Bush administration responded to the September 11 attacks and the threat of further terrorism by asserting expansive executive authority across a wide range of national security domains. The President fashioned new rules for detaining those captured in what was called the “global war on terror.” Most of the detainees were held abroad, but a few were detained in military prisons here in the United States. Some detainees were subjected to coercive interrogation practices, including techniques that had been employed by members of the Japanese armed forces who were charged with war crimes by the United States after World War II. Secret prisons for Central Intelligence Agency detainees were acknowledged by President Bush, and the practice of extraordinary rendition of terror suspects to third countries was documented in instances embarrassing to the United States. In November 2001, the President issued a military order to try detainees by military commissions, attended by limited protections for the rights of the accused. The President also vigorously asserted that habeas corpus relief in the federal courts should not be available to these detainees.1 Meanwhile, the Bush administration launched a war against Iraq in 2003 at least in part on the basis of the controversial legal claim of preemption – the United States had to act to preempt a credible and imminent threat that Iraq would attack the United States and its allies with weapons of mass destruction. In December 2005, we learned that the National Security Agency (NSA) had since 2001 listened in on the conversations of U.S. citizens under a warrantless wiretapping program.

Congress did respond to the President’s request for support in the Authorization for the Use of Military Force,2 the USA PATRIOT Act,3 the Detainee Treatment Act,4 and the Military Commissions Act.5 Yet these were exceptions to the rule of unilateral presidential action. Congress’s independent duty to deliberate and legislate in response to national problems was largely forgotten during this decade, and that absence eliminated from our constitutional system the critical component of competition, clashes, and compromise that has served well over time to prevent the accumulation of power in any one branch. Although the precedents available to the courts often provided unclear and insufficient guidance in resolving the national security disputes of the twenty-first century, the Supreme Court rebuked the Bush administration and spurred some limited congressional reaction in a series of important decisions between 2004 and 2008.

It was thus to be expected that President Barack Obama entered office armed with a national security reform agenda. National security reform has been at or near the top of incoming administration priorities since the end of World War II. Most of the time, reforms have been directed at national security policies targeted in the incoming administration’s election campaign. During the 2008 campaign, that list grew to include the detention and interrogation policies – most often associated with the Guantánamo Bay facility and the Abu Ghraib prison in Iraq – the warrantless surveillance program conducted by the NSA, and the use of preventive war in Iraq and its lingering costs.

Less often has national security reform focused on the structures and processes of the national security system, including departmental and agency organization, management, and interagency cooperation. The National Security Act of 19476 was the product of one such effort, marking an unprecedented reorganization of the national security bureaucracy to respond to the post-war threats posed by the Soviet Union. Although there have been hundreds of systemic or structural national security reforms since 1947, accompanied by many more commission reports, legislative hearings, and studies, the only major reform occurred in response to the September 11 attacks. President Bush created an Office of Homeland Security and a Homeland Security Council in October 2001, and in 2002 Congress created the Department of Homeland Security and codified the HSC. The National Commission on Terrorist Attacks upon the United States released the 9/11 Commission Report in 20047 and, among other things, structural reform of intelligence followed. Congress passed the Intelligence Reform and Terrorism Prevention Act of 2004,8 creating the Office of the Director of National Intelligence…