Hedging Against Uncertainty:
US Strategy in an Interdependent World

Book review of James E. Baker's In the Common Defense: National Security Law for Perilous Times, Cambridge University Press, 2007. 418 pages, $30.00

Reviewed by Harvey Rishikof

"The threat of catastrophic attack with nuclear weapons has the greatest potential impact on our way of life in terms of human cost." (p. 307)

"A 2006 poll of 116 terrorism specialists representing a cross-section of political perspectives placed the likelihood of a "terrorist attack on the scale of 9/11 occurring in the United States" in the next five years (by the end of 2011) at 79 percent." (p. 242)

"We are on borrowed time." (p. 6)

James E. Baker
In the Common Defense

There is a sense of urgency in this book. The pages bristle with measured insights, shrewd counsel, and thoughtful analysis based upon practical experience. In the Common Defense: National Security Law for Perilous Times should be on the shelf of the national security transition team for the 44th president of the United States. Published in 2007, the text is a basic primer and touchstone for the issues raised by national security law and the process by which national security policy should be made. In fact, the book would be a great addition to the welcoming package for all national security "professionals" – lawyers and policymakers in the new administration.

For example, the chapter on homeland security poses what will be threshold questions for a new administration. In the wake of the creation of the Homeland Security Council (HSC) as part of the Homeland Security Act of 2002, Baker questions – Is the Homeland Security Council process the most effective mechanism for addressing homeland security? And, would the president be better served by a singular national security process or, perhaps, a process distinct from both the National Security Council and the Homeland Security Council? (p. 251) Analyzing the "dual process" problem he concludes three factors will determine the success of the HSC – the personality of the players; speed (the ability to fuse intelligence and unity of command); and finally, whether the council has embedded itself in agency culture and expectations. Sub-cabinet coordination, state and local law enforcement coordination, and federalism pose substantial problems. Though there is a National Response Plan for the federal system, a National Incident Managements System for state and local government, State Emergency Plans, and Pandemic Response Plans issued by HSC, our Katrina experience is not reassuring. For Baker, the overarching legal and policy issues associated with federalism and domestic use of military persist since there is no template for the relationship. (p. 292)

In discussing the recent amendments to posse comitatus, the Insurrection Act, and the Stafford Act, Baker explains how the new administration may well be confronted with a domestic military deployment under the Department of Homeland Security, HSC, the new Northern Command established in 2002. How will it all work? Are the lawyers and policy makers ready and do they understand the issues? The top three homeland security issues for Baker are: (1) nonproliferation, (2) maritime security, and (3) public health. Although congress has passed acts in each area, there are gaps - serious strategic gaps.

In a crisis, the key to an effective response will be "speed, intelligence and unity of command." Clarification of the use of the military domestically, coordination with the private sector, and how federal power will be deployed are required. Baker wisely counsels that the principles that should guide the law are transparency of federal power; dual-use capacities for natural disasters and pandemics; risk management involving federal assets; a concentric defense that attacks and defends, prevents and responds, and supports resiliency of institutions. All of this requires extensive expenditures and, finally, a frank appraisal of current capacity. I leave it to the reader as to where we are. Baker calls for homeland security lawyers to identify any statute, regulation, or practice that will impede the ability of their agency to fully and effectively secure the nation. This is sound advice.

The author is not just an academic, but was a practitioner of national security law and now is a jurist. Judge James E. Baker was appointed to the United States Court of Appeals for the Armed Forces in 2000. He previously served as Special Assistant to the President and Legal Adviser to the National Security Council, where he advised the President, the National Security Adviser, and the NSC staff on U.S. and international law involving national security, including the use of force, terrorism, arms control, and human rights. Prior to this, he also served as Deputy Legal Adviser to the National Security Council and as Counsel to the President’s Foreign Intelligence Advisory Board and Intelligence Oversight Board. As an attorney adviser in the Office of the Legal Advisor, Department of State, he provided advice on law enforcement, intelligence, and counter-terrorism, and he served as legal adviser to U.S. delegations to various environmental negotiations. Baker also served in the legislature, as a legislative aide and acting Chief of Staff to Senator Daniel Moynihan. In addition to this study, Judge Baker is the co-author of Regulating Covert Action and numerous articles on national security and criminal law. His career track also includes military service. After graduating from Yale College, he received a Reserve commission as a Second Lieutenant in the Marine Corps. He then earned a regular commission at The Basic School before joining the Fleet Marine Corps. He eventually attended Yale Law School and continues to teach national security law at a number of schools. It would be hard to find an individual who has been more committed to bi-partisan national security policy formation.

The book is divided into ten chapters covering the nature of the current threat, the meaning of national security, the constitutional framework, electronic surveillance - constitutional law applied, the national security process, the role of intelligence, the use of military force, homeland security, and quite significantly, in the final chapter the role of the national security lawyer. The breadth of the topics reflects the scope of what "national security" has come to mean in the 21st century. Domestic and international categories are eroding in the face of transnational threats that are not state-based and testing the limits of the law and policy makers. As a result, the practice of national security law and the projection of force is crossing traditional boundaries, hence the breadth of issues.

To guard our liberty and physical security we need to "find a lasting architecture" with the "sorts of checks and balances that serve as the hallmark of the rule of law," (p. 11). For Baker this lasting architecture must come from "good process" whereby all views are present and there are devil’s advocates who can test factual assumptions, test assurances, and evaluate the implications – process conveys "validity." (p.25) As ironically underscored by Baker in his chapter on national security law, the Constitution is a short document, and is also short on substance, but very long on process. Law is critical for Baker since it enables security, shields liberty and foundationally provides the process and framework within which to evaluate the efficacy and legality of policy.

The legislature, judiciary and the executive must be part of this national security apparatus. In a powerful footnote in the first chapter, he rejects the theory of the "unitary executive theory" of power. Although the executive under the separation of power theory in good faith can direct the executive branch to follow its interpretation of the Constitution: "the theory’s premise that the executive is therefore free to ignore the views of the other branches is pernicious, and ignores 200 years of constitutional practice stating with John Marshall’s statement that is the province of the Supreme Court to say what the law is. Moreover, the theory can elevate the separation of powers to a pedestal not intended, placing the executive’s legal determinations beyond the reach of the Constitution’s other interlocking checks and balances. The Constitution recognizes that a foundational-shared obligation is for each branch to uphold liberty through the oversight of the other branches. Similarly, providing for the common defense is a responsibility of all branches of government." (Fn. 10. p. 346) This piece of counsel in the wake of the recent Supreme Court legal decisions over habeas corpus, detainee detention, wiretapping, and jurisdiction should be heeded by the future administration.

In the words of Baker, the threat of weapons of mass destruction, such as nuclear weapons, in the hands of terrorists is a threat that is "perpetual, indefinite, endless and not just long." (p. 9) Quoting James Madison’s fear that when a government is in "continual effort and alarm attendant on a state of continual danger" ominous consequences for process lurk. In such a situation of such threat presidents and their lawyers may decide that the process due is no process at all; that every search and seizure is reasonable; and, that these extraordinary circumstances negate the necessity for checks and balances on the use of military and intelligence instruments. (p. 10) Much then can be done in the name of "national security" and these actions often undermine the concept of process.

As Baker explains in chapter two exploring the meaning of national security, there is "no single definition of national security" recognized in law or policy. (p. 18) "Security, however, is concrete and rule of law is an abstraction, a term that is easy to employ in rhetoric, but hard to measure in result." (p. 22) As noted by Baker, Justice Jackson once famously opined, "a judge… may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves." Faced with the dilemma of "concrete security" v. "abstraction in law," policy makers are prone to choose the concrete at the expense of abstraction. But again Baker’s words are prescient – "… a national security policy that does not include the rule of law as a core element will diminish not only our liberty but also our security. That is because good process, founded in law, including good legal process, as well as good faith adherence to the law, produces better security results." (p. 22)

Given this reliance on law, his chapter on the constitutional framework is worth a close read since his reading of the key cases - Curtiss-Wright and Youngstown - are reviewed to distinguish between agreed upon "law" and constitutional theory and assertion. In the national security area, there are special jurisdictional problems concerning transparency. A theme in this chapter and the book is the role of the national security lawyer in the framework. Under the "state secrets privilege" lawyers are required to draft declarations on the "actual and necessary secrets." This responsibility requires moral and professional integrity since courts tend to be deferential to these affidavits. In addition the "political question doctrine" also is a brake on judicial review. This interplay between executive prerogative and congressional overview with potential judicial review is one that each administration confronts.

The recent proposed legislation this summer on electronic surveillance is previewed in the chapter reviewing constitutional law as applied. In a creative chapter, Baker in lawyer-like fashion lays out the legal arguments for and against presidential authority to authorize warrantless surveillance under Foreign Intelligence Surveillance Act (FISA), based on the legal categories of constitutional framework/court precedent/wartime powers and responsibilities/historic practice/statutory analysis under FISA, the Authorization to Use Military Force (AUMF), and facts. This is followed by an equally powerful "legal policy advice" section presenting the prudential factors in determining a president’s position to exercise "inherent executive power" based on secrecy, efficiency, presidential authority, and legislative tactics. Again he explores in the alternative, the following of a parallel track with the legislature or judiciary based on rule of law and public diplomacy/sustained public support/maximization of presidential authority/encouraging risk-taking with legislative backing/ and most prophetically private sector protection and support.

In his epilogue for the electronic surveillance chapter and lead on to his description of the national security process section, he underscores why an administration should have a rigorous vetting process of programs when a president chooses to assert executive power since, as noted by Alexander Hamilton in Federalist 8, "It is the nature of war to increase the executive at the expense of the legislative authority." Since the "legitimate thirst for secrecy may overwhelm the instinct for good government" we need "a good process that acknowledges and addresses these tensions" so that the correct actors are in the room with appropriate information so that "accountability" can be established. For Baker, presidential power in the national security arena is "contextual" with informal and formal channels, but the right balance between "operational efficacy" and "presidential accountability" is critical for the best results. All presidents craft a national security process that fits their character. Baker, however, warns that presidents who chose to exclude critical actors run the risk of omitting critical facts or insights. In short, bad process equals bad policy. We have seen what happens when a small cabal controls decision-making and avoids having a vetted process for all views.

Like many in this field, Baker believes that intelligence is the "fuel" for a successful counter-terrorism program. In exploring the five essential intelligence functions (collection, analysis and dissemination, counterintelligence, covert action and liaison), he reiterates the fact that in this area, "leadership and not law will ultimately determine whether the intelligence instrument is successfully employed." (p. 130) For example, any administration must be conscious of the risks involved in collection and the moral and potential legal compromises. Boy scouts often do not hold information. "Working" with these foreign assets requires constant appraisal as to "whether the United States has effectively calibrated the risk of penetration, the risk of causalities, the risk of values compromise, and the risk of attack." (p. 140) This type of calibration requires judgment and experience. In Baker’s analogy, if intelligence is the fuel, the president is the engine and national security lawyers are part of the policy crew that helps to navigate the craft of state. (p. 173)

In a revealing paragraph discussing rendition and torture, Baker points out that under Article 2 of the Convention Against Torture (CAT) to which we are signatories, "no exceptional circumstances whatsoever; whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture." (p. 170) Therefore, regardless how the United States defines or interprets its criminal law implementing CAT, other states may define the term differently than us, and under the International Criminal Court "torture" is a war crime under its jurisdiction. (p. 170) Having lawyers not tied to the policy at stake, testing facts and arguments as a counselor, peer review and role playing as a devil’s advocate, and identifying enduring consequences should be the process when new tactics and approaches are being implemented.

The chapter on the use of military force is a wonderful primer on jus ad bellum and jus in bello and reviews the critical doctrines of discrimination, proportionality, necessity, and military objective. It covers the war powers act, international law and self-defense, preemption, and prevention, for example, and the current unified chain of command. For JAG officers he asks the fundamental questions: Is the chain of command configured in a manner that provides for meaningful and timely legal advice? Is the chain of command educated on the law? Is the chain of command configured in a manner that clarifies or obfuscates decisions? Does the chain of command integrate the correct measure of civilian control? The last question in particular has become a "hot button" in civilian military relations. What is legal military professionalism and what is its relation with civilian authority? At what point do JAG officers assert international norms under the law of armed conflict? Our current situation with "detainees" is a painful public policy example of military/civilian divergence.

The penultimate chapter is simply titled "The National Security Lawyer." As Baker explains, law provides an array of positive or substantive instruments, procedural mechanisms for review, and reflects American values of democracy and liberty. In the international context, law can provide avenues to achieve our security objectives as in the maritime arena. Law provides predictability, is a source of calm and stability, and provides continuity.

Lawyers "reside at the intersection where physical safety and liberty merge" (p. 323) and it requires moral courage "to decide when, whether, and how to speak up." (p. 310) They must have the temerity to insist on attendance at a necessary meeting (p. 310) and rebut charges of "lawyer creep," whereby one question begets another question, and another. (p. 314) At times lawyers must assume the role of advocate, of neutral judicial counsel, of pure advisor of the law, or ultimately, a defender of the public interest.

We have seen how the previous administration used its lawyers and interpretations of the constitution and law. History will provide the final verdict to their approach. The new administration and its lawyers would do well to heed the concluding paragraph of Baker’s book:

The law depends on the morality and courage of those who apply it. It depends on the moral courage of lawyers, who raise tough questions, who dare to argue both sides of every issue, who insist on being heard at the highest levels of decision-making, and who ultimately call the legal questions as they believe the Constitution dictates and not necessarily as the policymakers may want at a moment in time. We do not live in a moment in time. We and our children live in perilous times. (p. 325)

Harvey Rishikof, Professor of Law, former Chair, Department of National Security Strategy, National War College and former legal counsel to the deputy director to the FBI. The views expressed in this review are those of the author and do not reflect the official policy or position of the National Defense University, the National War College, the Department of Defense, or the U.S. Government.