In the Common Defense: National Security Law for Perilous Times

by James E. Baker

• ISBN13: 9780521877633
• ISBN10: 0521877636
• Edition: 1st
• Format: Hardcover
• Copyright: 2007-05-21
• Publisher: Cambridge University Press

Summary

The United States faces the realistic and indefinite threat of terrorist attack with nuclear weapons. Whether the United States is successful in preventing such an attack will depend on whether we effectively wield the instruments of security. It will also depend on whether we effectively manage national security processes and apply the law in a manner that both enhances security and upholds our core values. As a result, lawyers, not just presidents, generals, and spies, will decide the outcome of this conflict. This book is essential for anyone wanting a understanding of 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 like rendition and electronic surveillance. Emphasis is placed on national security process and intelligence, as well as the role of the layer. Written in a style accessible to both the general reader and the specialist, the book offers an inside look at the practice of national security law from the perspective of the president's national security lawyer.

Table of Contents

Acknowledgments	p. xi
Abbreviations	p. xiii
Introduction	p. 1
Perilous Times: Describing the Threat	p. 8
The Meaning of National Security	p. 13
Invoking National Security	p. 13
Defining National Security	p. 16
Security, the Rule of Law, and Constitutional Values	p. 20
Physical Security	p. 21
Constitutional Values and the Rule of Law	p. 21
National Security Law	p. 23
Law and Security	p. 23
Law and Leadership	p. 28
Law and Liberty	p. 29
Constitutional Framework	p. 32
Separate and Shared Powers: Sources of Constitutional Law	p. 33
Text	p. 33
Statutory Gloss and Interpretation	p. 36
Case Law	p. 38
Courts and Constitutional Law	p. 46
Legal Limits on the Exercise of Jurisdiction	p. 47
Legal Policy and the Exercise of Jurisdiction	p. 49
Institutional Limitations	p. 50
Contextual Application of Law	p. 51
Observations on the Practice of Constitutional Law	p. 52
Practice as Precedent	p. 54
Theory as Law	p. 55
The Volume of Constitutional Decision	p. 58
Institutional and Political Oversight	p. 62
Formal and Informal Practice	p. 63
A Few Good Men and Women	p. 69
Electronic Surveillance: Constitutional Law Applied	p. 71
Legal and Historical Background	p. 71
The Foreign Intelligence Surveillance Act, as Amended	p. 78
Warrantless Electronic Surveillance	p. 87
Epilogue	p. 96
National Security Process	p. 99
Constitutional Framework and Overview	p. 100
Executive Decision	p. 100
Congress	p. 102
The Media	p. 103
Non-Governmental Organizations	p. 104
Presidential Decision-Making	p. 105
Formal Framework	p. 105
National Security Council Staff	p. 110
Informal and Ad Hoc Process	p. 116
The Office of the Vice President	p. 119
Appraisal	p. 121
Intelligence	p. 126
Bureaucratic and Legal Framework	p. 126
Legal Framework	p. 127
Congressional Oversight	p. 130
National-Military Bifurcation	p. 132
Intelligence Community	p. 134
The Five Intelligence Functions	p. 135
Collection	p. 135
Analysis and Dissemination	p. 141
Counterintelligence	p. 147
Covert Action	p. 148
Statutory Context	p. 150
Executive Process and Review	p. 154
Legal Permits and Constraints	p. 154
Legal Policy Issues	p. 156
Liaison	p. 159
Extradition, Rendition, and Extraordinary Rendition: Law Applied	p. 162
Conclusion	p. 172
Use of Military Force	p. 176
The War Power	p. 177
Theory and Law	p. 178
The Common Law of History	p. 181
The War Powers Resolution	p. 183
Consultation	p. 183
Reporting	p. 183
Sixty-Day Clock	p. 185
Appraisal	p. 189
International Law	p. 192
Resort to Force	p. 193
Self-Defense	p. 194
Anticipatory Self-Defense	p. 196
From Anticipation to Preemption	p. 200
Protection of Nationals	p. 207
Security Council Authorization	p. 207
Humanitarian Intervention and Other Compelling Circumstances	p. 210
Application of Force - Methods and Means of Warfare	p. 213
Specific Rules and General Principles	p. 214
Legal Policy and the Application of the Law	p. 219
Constitutional Chain of Command	p. 225
Combatant Commands	p. 230
Opcon, TacCon, AdCon, and Foreign Command	p. 233
Appraisal	p. 234
Homeland Security	p. 240
Homeland Security Decision-Making Resources, and Legal Framework	p. 242
The Threat Revisited	p. 242
Homeland Security Strategy	p. 243
Decision-Making Structure	p. 246
Presidential Process and Decision	p. 247
Sub-Cabinet Coordination	p. 254
State and Local Coordination	p. 257
Three Whos: Who Decides? Who Pays? Who Acts?	p. 261
Federalism	p. 261
The Military Instrument	p. 265
Legal Framework	p. 267
Posse Comitatus	p. 268
The Insurrection Act	p. 270
The Stafford Act	p. 272
Specific Regimes and Appraisal	p. 274
Nonproliferation	p. 275
Maritime Security	p. 281
Public Health	p. 285
Appraisal	p. 290
Katrina and the GAO Reality Gap	p. 290
Toward a Homeland Security Legal Strategy	p. 294
Herding the Legal Elephants	p. 297
Use of the Military	p. 297
Private Sector Responsibilities	p. 299
Federalism	p. 300
Principles to Inform Homeland Security Law	p. 301
Transparency	p. 301
Dual-Use Capacity/Dual Benefit Policy	p. 302
Risk Management, Not Risk Acceptance	p. 303
Concentric Defense	p. 304
Appraisal	p. 305
The National Security Lawyer	p. 307
National Security Legal Practice	p. 310
The Duty of the National Security Lawyer	p. 317
Attachments	p. 327
Notes	p. 345
Index	p. 381
Table of Contents provided by Ingram. All Rights Reserved.