Praise for THE NATIONAL SECURITY COUNCIL ________________________________________ “Objective, thorough, and a treasure trove of history for future scholarship. It unveils many of the neglected legal underpinnings of the Cold War . .” JAMES R. LOCHER III, Executive Director, Project on National Security Reform Former Assistant Secretary of Defense, Special Operations and Low-Intensity Conflict FOREWORD BY DOUGLAS T. STUART “An outstanding contribution and an excellent narrative history of the National Security Author of Creating the National Security State Council that will inform future Presidents and National Security Advisors for years to come.” Ambassador DAVID ABSHIRE, President & CEO, Center for the Study of the – THE – Presidency, Former Ambassador to NATO SECURITY COUNCIL THE NATIONAL “Few institutions have the responsibility and impact of the NSC . this book is required reading for those who wish to affect national security policy.” NATIONAL NORM AUGUSTINE, Retired Chairman & CEO, Lockheed Martin Corporation Former Under Secretary of the Army “[A] meticulous and compelling account of the evolution of the form and function SECURITY COUNCIL of the National Security Council since its creation that will inform an incoming A LEGAL HISTORY OF THE PRESIDENT’S MOST POWERFUL ADVISERS administration’s early decisions regarding the optimal role of the NSC . .” Dr. RUTH A. DAVID, President & CEO, Analytic Services Inc. Former CIA Deputy Director, Science and Technology ________________________________________ PROJECT ON NATIONAL SECURITY REFORM CODY M. BROWN The non-partisan Project on National Security Reform was established to assist the nation in identifying and implementing the kind of comprehensive reform that the government urgently needs. A key component of PNSR’s work has been a thorough NAL analysis of current problems; PNSR’s working groups have conducted thirty-seven IO SEC AT U N R major case studies and sixty-three mini case studies. Nine analytic working groups I N T Y O have examined different aspects of the national security system and are developing R T E C F E recommendations for addressing problems within their respective domains. Four O J R O M additional groups will take the products from the main analytic working groups and R work with congressional leadership to develop mechanisms for reform, draft legislative P proposals and executive orders, amend House and Senate rules, and assist the Executive Branch in the implementation of reforms. Legal Working Group Gordon N. Lederman, Chair The Project is led by James R. Locher III, a principal architect of the Goldwater- Nichols Act that modernized the joint military system, and sponsored by the Center for the Study of the Presidency, which is led by Ambassador David Abshire. PNSR’s Guiding Coalition, comprised of distinguished Americans with extensive service in the public and private sectors, sets strategic direction for the Project. PNSR works closely with Congress, executive departments and agencies, nonprofit public policy organizations, universities, industry, and private foundations. THE NATIONAL SECURITY COUNCIL A Legal History of the President’s Most Powerful Advisers CODY M. BROWN ABOUT THE PROJECT ON NATIONAL SECURITY REFORM The non-partisan Project on National Security Reform was established to assist the nation in identifying and implementing the kind of comprehensive reform that the government urgently needs. A key component of PNSR’s work has been a thorough analysis of current problems; PNSR’s working groups have conducted thirty-seven major case studies and sixty-three mini case studies. Nine analytic working groups have examined different aspects of the national security system and are developing recommendations for addressing problems within their respective domains. Four additional groups will take the products from the main analytic working groups and work with congressional leadership to develop mechanisms for reform, draft legislative proposals and executive orders, amend House and Senate rules, and assist the Executive Branch in the implementation of reforms. The Project is led by James R. Locher III, a principal architect of the Goldwater-Nichols Act that modernized the joint military system, and sponsored by the Center for the Study of the Presidency, which is led by Ambassador David Abshire. PNSR’s Guiding Coalition, comprised of distinguished Americans with extensive service in the public and private sectors, sets strategic direction for the Project. PNSR works closely with Congress, executive departments and agencies, nonprofit public policy organizations, universities, industry, and private foundations. ABOUT THE CENTER FOR THE STUDY OF THE PRESIDENCY The Center for the Study of the Presidency (CSP), founded in 1965, is a non-partisan, non-profit organization that provides an institutional memory of and for the U.S. Presidency in a changing world. The Center is the only organization that systematically examines past successes and failures of the Presidency and relates its findings to present challenges and opportunities. By highlighting past presidential successes and failures, the Center seeks to offer wisdom to current and future presidents, their staffs, Congress and to students and journalists studying the Presidency. Today, both the executive and legislative branches are highly compartmentalized, and this is the enemy of strategic thinking, action, and the best use of resources. In addition, the nation is polarized even though public opinion polls show a desire to break these barriers and face our nation’s real public policy issues. Lessons learned from past American experiences offer insights on how best to deal with these challenges. The Center organizes conferences, working groups and publications to preserve the presidential memory; examines current organizational problems through an historical lens; and nurtures future leaders. PROJECT LEADERSHIP James R. Locher III, Executive Director Dennis C. Blair, Deputy Executive Director Christopher J. Lamb, Director of Research and Analysis Job C. Henning, Director of Political and Legal Affairs LEGAL WORKING GROUP Gordon N. Lederman, Chair Jeff Greene, Deputy Director Cody M. Brown, Chief of Legal Research Justin Rubin, Staff Attorney Jeffrey D. Ratner, Staff Attorney PROJECT ON NATIONAL SECURITY REFORM Sponsored by the Center for the Study of the Presidency 1020 19th Street, NW, Suite 250 | Washington, DC 20036 | Phone: 202.742.1390 | Fax: 202.296.2178 | [email protected] | www.pnsr.org Copyright ©2008 All rights reserved GUIDING COALITION David M. Abshire, President and CEO, The Center for the Study of the Presidency • Norman R. Augustine, Retired Chairman and CEO, Lockheed Martin Corporation • Joel Bagnal, President and CEO, Detica Inc. • Robert D. Blackwill, Counselor, Council on Foreign Relations • Dennis C. Blair, Former Commander-in-Chief, U.S. Pacific Command •Charles G. Boyd, President and CEO, Business Executives for National Security • Ashton Carter, Ford Foundation Professor of Science and International Affairs, John F. Kennedy School of Government, Harvard University • Daniel W. Christman, Senior Vice President for International Affairs, U.S. Chamber of Commerce • Wesley K. Clark, Former Supreme Allied Commander, Europe • Ruth A. David, President and CEO, Analytic Services Inc. • Michèle Flournoy, President, Center for a New American Security • Leon Fuerth, Project on Forward Engagement, George Washington University • Edmund P. Giambastiani Jr., Former Vice Chairman, Joint Chiefs of Staff • Newt Gingrich, Former Speaker, U.S. House of Representatives • James L. Jones, President and CEO, Institute for 21st Century Energy, U.S. Chamber of Commerce • James R. Locher III, Executive Director, Project on National Security Reform • James M. Loy, Former Deputy Secretary of Homeland Security • Jessica Tuchman Mathews, President, Carnegie Endowment for International Peace • John McLaughlin, Senior Fellow, Paul H. Nitze School of Advanced International Studies The Johns Hopkins University • Joseph S. Nye, Jr., University Distinguished Service Professor, John F. Kennedy School of Government, Harvard University • Carlos Pascual, Vice President and Director, Foreign Policy Studies, Brookings Institution • Thomas R. Pickering, Former Permanent Representative to the United Nations • Brent Scowcroft, President and Founder, The Scowcroft Group • Jeffrey H. Smith, Partner, Arnold & Porter • James B. Steinberg, Dean, Lyndon Johnson School of Public Affairs, University of Texas at Austin • Ken Weinstein, CEO, Hudson Institute Acknowledgments A great many people and organizations deserve recognition for assisting – wittingly or unwittingly – with this publication. The author is especially grateful to the Project on National Security Reform and the Center for the Study of the Presidency, particularly Jim Locher and Ambassador David Abshire for their continued interest in, and support of, this publication. Gordon Lederman, an inspiring colleague and friend, provided leadership that may be counted as the genesis of this work. Wendy Reid, a talented professional, oversaw the body of research from which this work emerged. The graces of The Honorable John L. Holahan and his staff, including Rachel Nelson and Carole Duckstad, allowed this work to be completed. Attorneys on the Legal Working Group, including Jeff Greene and Justin Rubin, generously contributed their keen analytical skills. And a number of distinguished professionals, colleagues, and friends provided valuable reviews and/or comments,