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The Limits of National Security Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2011 The Limits of National Security Laura K. Donohue Georgetown University Law, [email protected] Georgetown Public Law and Legal Theory Research Paper No. 12-118 This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1010 http://ssrn.com/abstract=2132563 48 Am. Crim. L. Rev. 1573-1756 (2011) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Comparative and Foreign Law Commons, National Security Law Commons, and the Securities Law Commons ARTICLE THE LIMITS OF NATIONAL SECURITY Laura K. Donohue* 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 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 * Associate Professor of Law, Georgetown Law. Thanks to John Benton, Ziad Haider, and Todd Venie for helping to obtain many of the documents used in this Article. I am grateful to Lucy Chester, Aziz Huq, Peter Katzenstein, Aaron O’Connell, Aziz Rana, Mike Seidman, Marc Sorel, David Super, Bob Turner, Steve Vladeck and Don Wallace for their thoughtful comments on earlier drafts. Members of both the Cornell Law Foreign Relations Colloquium and the Georgetown Law Foreign Relations Colloquium provided excellent feedback. Special thanks as well to Sarah Kelly-Kilgore and the editors of the American Criminal Law Review for their extraordinary assistance in editing this Article. It is much appreciated. © 2012, Laura K. Donohue. 1573 1574 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1573 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 IV. CONSTITUTIONAL CRISIS ................................ 1751 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 institu- tions, including, inter alia, merging the staffs of the National Security Council 1. PRESIDENT BARACK OBAMA,NATIONAL SECURITY STRATEGY 2, 29–30 (2010) [hereinafter OBAMA NSS], http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf (discussing immigration as a component of human capital); see also id. at 9–10 (calling for the integration of homeland security and national security staff). 2. Id. at 2. 2011] THE LIMITS OF NATIONAL SECURITY 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 3. Id. at 14. 4. Id. 5. Critics of the NSS as a meaningful document may correctly argue that its immediate object is policy, not law, and even then that it is subject to significant limitations (such as failing to establish priorities, consider fiscal limits, assign duties to agencies, or synchronize related documents). But such claims would overlook the importance of the NSS. For one, it derives from a legislative mandate. See 50 U.S.C. § 404a (2006). Via amendments to the National Security Act of 1947, Congress has required the President to submit an annual report, coincident with the budget, detailing the country’s approach to national security. Id. The statute requires that the President address: (1) worldwide interests, goals, and objectives vital to U.S. national security; (2) foreign policy, worldwide commitments, and national defense capabilities necessary to deter aggression and implement U.S. national security; (3) proposed short- and long-term uses of U.S. political, economic, and military power; (4) the adequacy of U.S. capabilities to carry out the NSS; and (5) additional information that may be necessary to keep Congress informed of matters related to U.S. national security. Id. In a constitutional sense, the report thus lies at the intersection of executive and legislative authorities: the former in an executive and foreign affairs capacity, and the latter in providing for the common defense and general welfare of the country. As a practical matter, moreover, the NSS accomplishes a number of important aims. As noted by the Congressional Research Service (“CRS”), by articulating a strategy, the NSS informs domestic and foreign audiences of the country’s strategic intent. See CATHERINE DALE,CONG.RESEARCH SERV., RL 34505, NATIONAL SECURITY STRATEGY:LEGISLATIVE MANDATES,EXECUTION TO DATE, AND CONSIDERATIONS FOR CONGRESS 2 (2008) [hereinafter DALE, NSS], http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RL34505_ 07282008.pdf. By linking the country’s goals and the approaches designed to meet them, it helps to justify the executive’s requests for authorization and appropriations from Congress and, in turn, Congress’s decision to grant executive requests. By offering prioritized objectives, moreover, the NSS provides guidance to departments and agencies to use in their internal processes for budgeting, planning, and operations, as well as organizing, training, and equipping their personnel. Id. The NSS anchors the most important policy documents in the field—the QUADRENNIAL DEFENSE REVIEW (“QDR”), the NATIONAL DEFENSE STRATEGY (“NDS”), the NATIONAL MILITARY STRATEGY (“NMS”), QUADRENNIAL INTELLIGENCE COMMUNITY REVIEW (“QICR”), and the QUADRENNIAL DIPLO- MACY AND DEVELOPMENT REVIEW (“QDDR”). 6. DEP’T OF DEF., QUADRENNIAL DEFENSE REVIEW AND BALLISTIC MISSILE DEFENSE REVIEW 5 (2010), http://www.defense.gov/news/d2010usdprolloutbrief.pdf.
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