0521877636 cambridge university press in the common defense national security law for perilous times may 2007

P1: KAE 0521877636pre CUFX132/Baker 521 87763 This page intentionally left blank ii March 21, 2007 9:27 P1: KAE 0521877636pre CUFX132/Baker 521 87763 March 21, 2007 IN THE COMMON DEFENSE The United States faces the realistic and indefinite threat of catastrophic terrorist attack Whether the United States is successful in preventing a nuclear, biological, or other security catastrophe depends on how effectively we wield the instruments of national security It will also depend on how effectively we manage national security processes and whether we apply the law in a manner that both enhances security and upholds our core constitutional values Therefore, lawyers, not just presidents, generals, and intelligence officers, will decide the outcome of this conflict This book is essential for anyone wanting to understand 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 such as rendition and electronic surveillance Emphasis is placed on national security process and intelligence, as well as the role of the lawyer Written in a style accessible to both the general reader and the specialist, the book offers a unique inside look at the practice of national security law from the perspective of a president’s national security lawyer James E Baker is a judge on the United States Court of Appeals for the Armed Forces and an adjunct professor at the Georgetown University Law Center and University of Iowa College of Law, where he teaches national security law He previously served as special assistant to the president and legal advisor to the National Security Council, where he advised the president, the national security advisor, and the National Security Council staff on U.S and international law involving national security, including the use of force, intelligence, and terrorism Judge Baker has also served as counsel to the President’s Foreign Intelligence Advisory Board, an attorney advisor at the Department of State, an aide to a U.S Senator, and an infantry officer in the United States Marine Corps He is a recipient of the Colonel Nelson Drew Memorial Award, the National Security Council’s highest honor, and co-author of Regulating Covert Action, as well as of numerous articles on national security and criminal law He holds degrees from Yale College and Yale Law School i 9:27 P1: KAE 0521877636pre CUFX132/Baker 521 87763 ii March 21, 2007 9:27 P1: KAE 0521877636pre CUFX132/Baker 521 87763 March 21, 2007 In the Common Defense National Security Law for Perilous Times James E Baker iii 9:27 CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521877633 © James E Baker 2007 This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press First published in print format 2007 eBook (EBL) ISBN-13 978-0-511-28511-0 ISBN-10 0-511-28511-6 eBook (EBL) hardback ISBN-13 978-0-521-87763-3 hardback ISBN-10 0-521-87763-6 Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate P1: KAE 0521877636pre CUFX132/Baker 521 87763 March 21, 2007 To my teachers v 9:27 P1: KAE 0521877636pre CUFX132/Baker 521 87763 vi March 21, 2007 9:27 P1: KAE 0521877636pre CUFX132/Baker 521 87763 March 21, 2007 Contents Acknowledgments Abbreviations page xi xiii Introduction 1 Perilous Times: Describing the Threat The Meaning of National Security 13 A Invoking National Security B Defining National Security C Security, the Rule of Law, and Constitutional Values Physical Security Constitutional Values and the Rule of Law National Security Law 23 A Law and Security B Law and Leadership C Law and Liberty 13 16 20 21 21 23 28 29 Constitutional Framework 32 A Separate and Shared Powers: Sources of Constitutional Law Text Statutory Gloss and Interpretation Case Law B Courts and Constitutional Law Legal Limits on the Exercise of Jurisdiction Legal Policy and the Exercise of Jurisdiction Institutional Limitations Contextual Application of Law C Observations on the Practice of Constitutional Law Practice as Precedent Theory as Law The Volume of Constitutional Decision 33 33 36 38 46 47 49 50 51 52 54 55 58 vii 9:27 P1: KAE 0521877636pre CUFX132/Baker 521 87763 viii Contents Institutional and Political Oversight Formal and Informal Practice A Few Good Men and Women Legal and Historical Background The Foreign Intelligence Surveillance Act, as Amended Warrantless Electronic Surveillance Epilogue 100 100 102 103 104 105 105 110 116 119 121 Intelligence 126 A Bureaucratic and Legal Framework Legal Framework Congressional Oversight National–Military Bifurcation Intelligence Community B The Five Intelligence Functions Collection Analysis and Dissemination Counterintelligence Covert Action a Statutory Context b Executive Process and Review c Legal Permits and Constraints d Legal Policy Issues Liaison C Extradition, Rendition, and Extraordinary Rendition: Law Applied D Conclusion 71 78 87 96 National Security Process 99 A Constitutional Framework and Overview Executive Decision Congress The Media Non-Governmental Organizations B Presidential Decision-Making Formal Framework National Security Council Staff Informal and Ad Hoc Process C The Office of the Vice President D Appraisal 62 63 69 Electronic Surveillance: Constitutional Law Applied 71 A B C D March 21, 2007 126 127 130 132 134 135 135 141 147 148 150 154 154 156 159 162 172 Use of Military Force 176 A The War Power Theory and Law The Common Law of History 177 178 181 9:27 ... advisor to the National Security Council, where he advised the president, the national security advisor, and the National Security Council staff on U.S and international law involving national security, ... 2007 In the Common Defense National Security Law for Perilous Times James E Baker iii 9:27 CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge. .. national security while at the same time advancing the rule of law Hence the title: In the Common Defense The phrase comes from the preamble to the Constitution: We the People of the United States, in