P1: KAE 0521877636pre CUFX132/Baker 0 521 87763 6 March 21, 2007 9:27 ii This page intentionally left blank P1: KAE 0521877636pre CUFX132/Baker 0 521 87763 6 March 21, 2007 9:27 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. i P1: KAE 0521877636pre CUFX132/Baker 0 521 87763 6 March 21, 2007 9:27 ii P1: KAE 0521877636pre CUFX132/Baker 0 521 87763 6 March 21, 2007 9:27 In the Common Defense National Security Law for Perilous Times James E. Baker iii CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press 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 p ermission of Cambrid g e 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 g uarantee that any content on such websites is, or will remain, accurate or a pp ro p riate. Published in the United States of America by Cambridge University Press, New York www.cambridge.org hardback eBook (EBL) eBook (EBL) hardback P1: KAE 0521877636pre CUFX132/Baker 0 521 87763 6 March 21, 2007 9:27 To my teachers. v P1: KAE 0521877636pre CUFX132/Baker 0 521 87763 6 March 21, 2007 9:27 vi P1: KAE 0521877636pre CUFX132/Baker 0 521 87763 6 March 21, 2007 9:27 Contents Acknowledgments page xi Abbreviations xiii Introduction 1 1 Perilous Times: Describing the Threat 8 2 The Meaning of National Security 13 A. Invoking National Security 13 B. Defining National Security 16 C. Security, the Rule of Law, and Constitutional Values 20 1. Physical Security 21 2. Constitutional Values and the Rule of Law 21 3 National Security Law 23 A. Law and Security 23 B. Law and Leadership 28 C. Law and Liberty 29 4 Constitutional Framework 32 A. Separate and Shared Powers: Sources of Constitutional Law 33 1. Text 33 2. Statutory Gloss and Interpretation 36 3. Case Law 38 B. Courts and Constitutional Law 46 1. Legal Limits on the Exercise of Jurisdiction 47 2. Legal Policy and the Exercise of Jurisdiction 49 3. Institutional Limitations 50 4. Contextual Application of Law 51 C. Observations on the Practice of Constitutional Law 52 1. Practice as Precedent 54 2. Theory as Law 55 3. The Volume of Constitutional Decision 58 vii P1: KAE 0521877636pre CUFX132/Baker 0 521 87763 6 March 21, 2007 9:27 viii Contents 4. Institutional and Political Oversight 62 5. Formal and Informal Practice 63 6. A Few Good Men and Women 69 5 Electronic Surveillance: Constitutional Law Applied 71 A. Legal and Historical Background 71 B. The Foreign Intelligence Surveillance Act, as Amended 78 C. Warrantless Electronic Surveillance 87 D. Epilogue 96 6 National Security Process . . 99 A. Constitutional Framework and Overview 100 1. Executive Decision 100 2. Congress 102 3. The Media 103 4. Non-Governmental Organizations 104 B. Presidential Decision-Making 105 1. Formal Framework 105 2. National Security Council Staff 110 3. Informal and Ad Hoc Process 116 C. The Office of the Vice President 119 D. Appraisal 121 7 Intelligence 126 A. Bureaucratic and Legal Framework 126 1. Legal Framework 127 2. Congressional Oversight 130 3. National–Military Bifurcation 132 4. Intelligence Community 134 B. The Five Intelligence Functions 135 1. Collection 135 2. Analysis and Dissemination 141 3. Counterintelligence 147 4. Covert Action 148 a. Statutory Context 150 b. Executive Process and Review 154 c. Legal Permits and Constraints 154 d. Legal Policy Issues 156 5. Liaison 159 C. Extradition, Rendition, and Extraordinary Rendition: Law Applied 162 D. Conclusion 172 8 Use of Military Force 176 A. The War Power 177 1. Theory and Law 178 2. The Common Law of History 181 [...]... make the top tier of the list, which requires the threat to pose a serious challenge to the survival of the American republic.4 14 :4 P1: OTE 05 218 77636Xc 01 10 CUFX132/Baker 0 5 21 87763 6 March 15 , 2007 In the Common Defense Such discourse is part of the process of finding our constitutional equilibrium after 9 /11 But Ellis is wrong September 11 , 20 01, was not the beginning of the conflict, nor was it the. .. values of the person interpreting the constitutional text 13 :46 P1: OTE 05 218 77636Xint 6 CUFX132/Baker 0 5 21 87763 6 March 15 , 2007 In the Common Defense Question two: Under international law, when can a state use force? The answer may determine whether the United States acts alone or in alliance, as well as the ramifications of action or inaction In contemporary rhetoric and, what is more important, in contemporary... 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 13 :46 P1: OTE 05 218 77636Xint CUFX132/Baker Introduction 0 5 21 87763 6 March 15 , 2007 5 tools are used Intelligence is our early warning radar Intelligence is also... The pursuit of national security is hardly meaningful if it is achieved at the expense of the values comprising the nation itself .13 14 :30 P1: OTE 05 218 77636Xc02 18 CUFX132/Baker 0 5 21 87763 6 March 15 , 2007 In the Common Defense The end of the Cold War generated interest in new definitions of national security correlated against new and emerging threats The sometime government official and energy expert... people for specific purposes Consistent with the principle of federalism, 13 :46 P1: OTE 05 218 77636Xint CUFX132/Baker Introduction 0 5 21 87763 6 March 15 , 2007 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 of law to security as well... documented at least 17 5 instances from 19 93 to 20 01 involving trafficking in nuclear material; 18 of these cases involved weapons-grade fissionable material Media and IAEA reports indicate that this trend continues five years after 9 /11 .5 According to Department of Homeland Security (DHS) officials, “incidents tracked by the Department average about twice the number made public by the IAEA reports of... roles The key is in determining the appropriate role at the appropriate time and in gaining the confidence of the decisionmaker in order to do so The duty of the national security lawyer is not based on identification of the client It is based on the Constitution National security lawyers swear an oath of loyalty to the Constitution In some cases the oath is itself required by the Constitution; in other... the conflict It was a defining moment, but a moment nonetheless in an ongoing and open-ended conflict Churchill might have called it the end of the beginning On 9 /11 , the jihadists realized that the grand attack works, at least on a tactical level For our part, we realized that the jihadists have the wherewithal to attack America and do so in sophisticated fashion On 9 /11 , the threat of a WMD attack in. .. Rules and General Principles b Legal Policy and the Application of the Law C Constitutional Chain of Command 1 Combatant Commands 2 Opcon, TacCon, AdCon, and Foreign Command 3 Appraisal 9 March 21, 2007 ix 18 3 18 3 18 3 18 5 18 9 19 2 19 3 19 4 19 6 200 207 207 210 213 214 219 225 230 233 234 Homeland Security 240 Part I: Homeland Security Decision-Making Resources, and Legal... respect to the Fourth Amendment, 14 :4 P1: OTE 05 218 77636Xc 01 12 CUFX132/Baker 0 5 21 87763 6 March 15 , 2007 In the Common Defense “after -the- event justification is [a] far less reliable procedure for [it is] too likely to be subtly in uenced by the familiar shortcomings of hindsight judgment.”8 This makes a process of rigorous proactive executive appraisal embedded in law essential Finally, there may . Applied 16 2 D. Conclusion 17 2 8 Use of Military Force 17 6 A. The War Power 17 7 1. Theory and Law 17 8 2. The Common Law of History 18 1 P1: KAE 05 218 77636pre CUFX132/Baker 0 5 21 87763 6 March 21, 2007. Council Staff 11 0 3. Informal and Ad Hoc Process 11 6 C. The Office of the Vice President 11 9 D. Appraisal 12 1 7 Intelligence 12 6 A. Bureaucratic and Legal Framework 12 6 1. Legal Framework 12 7 2. Congressional. Oversight 13 0 3. National–Military Bifurcation 13 2 4. Intelligence Community 13 4 B. The Five Intelligence Functions 13 5 1. Collection 13 5 2. Analysis and Dissemination 14 1 3. Counterintelligence 14 7 4.