Friday, August 24, 2012

Donohue on the Four Epochs of National Security in the United States

My Georgetown Law colleague Laura Donohue, has posted The Limits of National Security, an account of national security across its four epochs in American history.  It is also out in the American Criminal Law Review 48 (2011): 1573-1756.  Here is the abstract:
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. It calls for a “seamless coordination among Federal, state, and local governments to prevent, protect against, and respond to threats and natural disasters.” 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 (“NSC”) and Homeland Security Council. 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.

The NSS is not alone in its rather expansive view of U.S. national security. The Quadrennial Defense Review (“QDR”), for example, issued in February 2010, cites threats related to the global commons, cybersecurity, climate change, and energy. 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.” 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.

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 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 national security interests of the Founders centered on protection of the Union, the constitutional structure of the state, and the national government as the institutional representation of the people as sovereign. But it is not now the protection of the people’s sovereignty that is the primary aim of federal activity. Instead, it is the federal government’s sovereignty, which, through secret mechanisms and a greatly enlarged administrative capacity, is being secured as against the people. The resulting constitutional implications make the fourth epoch fundamentally different from those that preceded it.

At some point, the effort to attach issues to national security is simply blatant opportunism. Thus, Senator Barbara Mikulski of Maryland, a member of the Health, Education, Labor, and Pensions Committee, recently considered counterfeit prescription drugs entering the United States. During the Senate hearing, she asked, “[A]re we moving with [a] sense of urgency? Has this been escalated to a homeland security issue? Is this the top of anyone’s agenda?” The underlying assumption is that as soon as the issue becomes couched as a security concern, it rockets to the top of the political agenda. “For any of us who value safety and efficacy,” Mikulski added, “this has to be elevated to a national security, homeland security and criminal level.” Reasonable minds may differ on whether the threats faced by the country today are any greater than those that existed in previous decades. Perhaps less controversial, however, is the observation that the basic understanding of what constitutes a national security threat has changed. So have executive institutions, relationships, and authorities -- with constitutional implications. In 1928, Justice Brandeis remarked, “The greatest dangers to liberty lurk in insidious encroachments by men of zeal, well meaning but without understanding.” In developing a deeper understanding of the evolution of conceptions of U.S. national security, perhaps stronger resistance to such encroachments may ensue.

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