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*1573 the Limits of National Security Jamshidi, Maryam 8/15/2019 For Educational Use Only THE LIMITS OF NATIONAL SECURITY, 48 Am. Crim. L. Rev. 1573 48 Am. Crim. L. Rev. 1573 American Criminal Law Review Fall, 2011 Symposium: Moving Targets: Issues at the Intersection of National Security and American Criminal Law Article Laura K. Donohuea1 Copyright © 2012 by American Criminal Law Review; Laura K. Donohue *1573 THE LIMITS OF NATIONAL SECURITY I. INTRODUCTION 1574 II. DEFINING U.S. NATIONAL SECURITY 1577 III. THE FOUR EPOCHS 1587 A. Protecting the Union: 1776-1898 1589 1. International Independence and Economic Growth 1593 2. Retreat to Union 1611 3. Return to International Independence and Economic Growth 1617 a. Tension Between Expansion and Neutrality 1618 b. Increasing Number of Domestic Power-Bases 1623 B. Formative International Engagement and Domestic Power: 1898-1930 1630 1. Political, Economic, and Military Concerns 1630 a. Military Might 1637 b. Secondary Inquiry: From Rule of Law to Type of Law 1638 2. Tension Between the Epochs: Independence v. Engagement 1645 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 Jamshidi, Maryam 8/15/2019 For Educational Use Only THE LIMITS OF NATIONAL SECURITY, 48 Am. Crim. L. Rev. 1573 3. Expanding National Spheres of Influence 1650 C. The Ascendance of National Security: 1930-1989 1657 1. A New Domestic Order 1658 a. Re-channeling of Law Enforcement to National Security 1661 b. The Threat of Totalitarianism 1665 c. The Purpose of the State 1666 2. Changing International Role: From Authoritarianism to Containment 1669 3. Institutional Questions and the National Security Act of 1947 1672 a. National Military Establishment 1673 b. Coordination for National Security: The NSC and CIA 1677 4. Bureaucratic Evolution 1682 5. The Soviet Threat and the Domestic Realm 1688 a. The Federal Bureau of Investigation 1688 b. Militarization 1693 c. National Security and Civil Rights 1695 6. Hypertrophic Executive Power 1698 D. Balancing Risk: 1989-2012 1705 1. Climate Change 1709 a. Origins of the NSS 1715 b. The NSS in the Fourth Epoch 1718 c. Expansion of the Traditional Framing 1723 2. Biodefense 1732 3. Drugs 1738 4. Crime 1743 a. The War on Crime 1744 b. The “Muddy Waters” Problem 1747 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Jamshidi, Maryam 8/15/2019 For Educational Use Only THE LIMITS OF NATIONAL SECURITY, 48 Am. Crim. L. Rev. 1573 IV. CONSTITUTIONAL CRISIS 1751 *1574 I. INTRODUCTION The United States’ National Security Strategy (“NSS”), issued in May 2010, articulates an expansion in U.S. interests that stems from the end of the Cold War. Departing from a policy of industrial growth and military containment in response to geopolitical threats, U.S. national security is now defined in terms of a wide range of potential risks that the country faces. The NSS, for instance, ties the economy, education, immigration, infrastructure, science and innovation, alternative forms of energy, health care, and reductions in the federal deficit to U.S. national security.1 It calls for a “seamless coordination among Federal, state, and local governments to prevent, protect against, and respond to threats and natural disasters.”2 A “whole of government approach” will integrate the skills and capabilities of the country’s military and civilian institutions, including, inter alia, merging the staffs of the National Security Council *1575 (“NSC”) and Homeland Security Council.3 In addition to foreign policy and international military concerns, the NSC will now also focus on trade, travel, organized crime, domestic intelligence gathering and dissemination, terrorism, public health, and natural disasters.4 The NSS is not alone in its rather expansive view of U.S. national security.5 The Quadrennial Defense Review (“QDR”), for example, issued in February 2010, cites threats related to the global commons, cybersecurity, climate change, and energy.6 The Quadrennial Intelligence Community Review (“QICR”), issued in January 2009, proclaims the dawn of a new era, requiring a “fundamental transformation of the national security establishment.”7 It identifies seven key variables underlying the unique threats now faced by the United States: political and military, social and cultural, demographic and health, domestic environment, innovation and technology, energy and environment, and economic and financial.8 What these and other articulations share in common is a significantly expanded view of what constitutes U.S. national security--one which differs not just from *1576 that which dominated during the Cold War, but also from any point in U.S. history. This is not the first shift in how the country has looked at its security interests. It is, however, by far the most expansive. And it is beginning to find root in the law, with significant constitutional implications. This Article argues that the current expansion represents the fourth and most troubling epoch in the evolution of the country’s approach to national security, one that raises concern about the distribution of power within the U.S. constitutional structure. It suggests that each epoch resulted in alterations to the domestic and foreign affairs structures of the federal government-- components generally considered to lie in different realms, but, in fact, equally important in conceptions of U.S. national security. The Article begins by considering what, exactly, is meant by “national security.” It posits a Hamiltonian definition--the laws and policies directed at protecting the national government in its efforts to aid in the common defense, preserve public peace, repel external attacks, regulate commerce, and engage in foreign relations.9 National security is thus rooted in concepts directly related to national sovereignty. The Article then returns to the Founding and suggests that the first epoch, which extended from 1776 to 1898, was marked, primarily, by the drive to Union and, secondarily, by the goals of establishing international independence and building the country’s economic strength. The Civil War represented a reversion to Union as the core of American national security, with recourse to international independence and economic growth following the defeat of the Confederate States. The Spanish-American War brought the first epoch to a close, leading to the second era, from approximately 1898 to 1930, in which U.S. national security expanded to include a formative agenda in the global environment. The United States would no longer be content to react to foreign developments; it would seek to shape the international arena. Domestically, the government sought to limit the growing strength of private sources of power. Tensions between the goals of the first age © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 Jamshidi, Maryam 8/15/2019 For Educational Use Only THE LIMITS OF NATIONAL SECURITY, 48 Am. Crim. L. Rev. 1573 (international independence and economic growth) and those of the second (engagement and dominance over potential rivals for domestic authority) resulted in power struggles between the federal branches of government. During the third epoch, which reached from the 1930s to 1989, national security became the United States’ overriding interest, rendering all other concerns subservient. The economy, education, housing, health care, civil rights--all these became seen through a new lens, gaining for national security a privileged position within the domestic discourse. Glimmers of this epoch first appeared with the country’s near-simultaneous entry into World War I and the domestic introduction of *1577 measures meant to counter the threat of totalitarianism. It was during this rise of totalitarianism in the 1930s, however, that the age took hold. World War II and the advent of the Cold War narrowed the focus to one form of threat. Containment of communism-- particularly with respect to the Soviet Union and its expansionist designs-- became the overriding goal. As a matter of foreign policy, the country emphasized military engagement and development aid, while focusing at a domestic level on fostering closer relationships among industry, science, and political institutions. Strides in the domestic civil rights arena also became an important response to Soviet allegations of democratic injustice. The fourth and most recent epoch in the evolution of U.S. national security emerged in 1989 with the fall of the Berlin Wall. National security dominates the domestic discourse as it did during the third epoch, making it the United States’ most powerful institutional engine. Risks, broadly defined, have become folded into the national security framework. Emphasis is now placed on the effects that may result should any of the anticipated risks become manifest. The intent of bad actors, either state or non-state actors, matters only within the context of responding to the specific threat. As a practical matter, this means that actor-less threats, such as pandemic disease, are now treated as matters of national security. Under the approach of the fourth epoch, global security--the security interests of other countries and regions--has become intertwined with U.S. national security. The line between foreign and domestic has begun to fade. Moreover, areas outside the traditional national security framework, such as climate change, public health, drugs, and criminal law, have been drawn into the national security infrastructure. Perhaps most significantly, executive branch authorities have rapidly expanded, raising a number
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