Sketching a National Security State Saner Than Today

As my isolation from the chattering classes continues, I’m inclined to go into hypotheticals and counter-factuals. One such hypothetical I returned to over the past few days is the following: What would a saner (but necessarily flawed) national security state look like?

A handful of disclaimers before I provide my ruminations.

First, this exercise is based upon the world as I see it existing, rather than the world as I would wish it to exist.

An ideal world is one where politicians see no need for a national security state, where the demos is not inclined to call for one and where the sobriety of the intellectuals keeps any such impulses in check. An ideal world would be one where state institutions weren’t inclined to play territorial games and jealously guard power and privilege. And an ideal world would be one where individual problems have tailored policy solutions, rather than being bolted onto the unwieldy machinery of the state.

Second, this exercise is a broad outline.  It is likely to miss important pieces of minutia and detail that a more careful exercise would not miss. In this I plead the format. A blog, by necessity is not a journal article. If there are points that beg questions or require further elaboration I urge readers to bring them up in comments.

And thus the disclaimers satisfied, I move on to the sketch….

To begin this sketch we need some idea of the object we’re sketching. The artful term “national security state” covers the state institutions responsible for advancing the national security goals of the United States. So far as this exercise is concerned, we’re essentially looking at Lawfare: The intersection of legal and national security policy spheres. As a consequence this exercise will focus on countering what I see as the largest deficiencies in the status quo.

The largest gaps I see in the US national security state are:

  1. The treatment of non-citizens as part of non-state actor groups in active or suspected belligerence against the United States.
  2. The treatment of US citizens collaborating with said belligerents.
  3. Determining where technological developments such as cyber warfare and unmanned systems fit into the overall structure of the state.
  4. Balancing the tradition of judicial review of executive actions with the need for secrecy.
  5. Determining the proper balance between military and law-enforcement measures.

All of these areas have caused the US substantial problems in the post-9/11 era. The first two gaps resulted in Guantanamo Bay and the Anwar Al-Awlaki. The third causes flare-ups in our commentariat as the issue of drone warfare brings out sharp divisions between our libertarians and those more sanguine about the use of state power.

The first change to the status quo I would envision would be the creation of a national security court system. In this I borrow heavily from Benjamin Wittes and Colleen Peppard from their excellent paper on the subjective of preventive detention. However, in this framework, this national security court would also handle cases of US citizens operating beyond the reach of US domestic law and power. (Essentially the Al-Awlaki situation)

The system would at the minimum require these conditions (again, borrowing heavily from Wittes and Peppard):

  1. The reviewing body must be staffed by federal judges.
  2. The parties involved would have access to counsel.
  3. The court must produce (at a minimum) a document certifying that a federal judge has reviewed government’s case and approved government’s proposed remedy. (Either detention or targeted killing)
  4. The Executive Branch must report to Congress what groups are considered covered under the court’s purview at least once every six months.
  5. The court has no jurisdiction for US citizens or legal residents within any territory the US has de facto sovereign control over.
  6. The court’s jurisdiction would sunset once every three years unless reauthorized by Congress.
This sort of national security court system would streamline the procedural questions and instead allow the emphasis to be upon the evidence and threat presented by the parties accused in the cases.
The second change to the status quo would involve Congress placing responsibility for new technological developments in national security to a single organization. This can take the form of a completely new organization (such as the creation of the Air Force in the wake of the Second World War) or by furnishing an existing organization with an additional mission. If necessary the US government should be willing to separate out the distinctions between armed and unarmed versions of remote systems and to distinguish between data gathering and data alteration in cyberspace.
Further this reorganization should include a new institution tasked with dealing with unmanned aerial systems within the domestic United States. Recent events have shown that the FAA is unlikely to be able to deal with the proliferation of unmanned systems. This new institution should be the licensing arm that determines who may own certain categories of drones. It should have the ultimate authority to ground drones operated by local law enforcement and be the agency that civilians can complain to in case there is abuse of unmanned systems by sub-federal sections of government.
While the above changes are modest, they could make a serious difference in the conversation about national security issues and in a positive way. More importantly, they would help establish a considered and less reactive framework than the present ad hoc regime created after the events of September 11, 2001. And moving away from that terror induced overreaction is a good and noble thing.
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23 thoughts on “Sketching a National Security State Saner Than Today

  1. That sounds good to me Nob, my concern with drone strikes is not so much that they happen, but rather that the President asserts to right to deploy them without review, or even necessarily letting anyone know who is being targeted.

    The other aspect of the National Security State that needs to be reined in is the use of the State Secrets Privellage, which has reached the point where it becomes an automatic get-out-of-court free card for the government.

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  2. First rate thinking, Nob.

    A few thoughts of my own. This is not an ideal world. We live in the shadow of nuclear weapons. When a fool over-praised the tyrant Damocles, Damocles suspended his own sword over his own throne and made the fool sit in it. The metaphor is often misused to describe ordinary peril but the Sword of Damocles hangs over everyone who sits in a position of power.

    Safety is the first duty of a state to its citizens. All good states are national security states. We might wish for a world where a national security apparatus could be kept in check by intellectuals and where we have indulged these peaceful notions, nothing good has ever come of it. The jealous guarding of power is the jealous guarding of life and liberty and the pursuit of happiness.

    The nation-state has largely outlived its usefulness in the affairs of men: borders haven’t kept us safe since in the invention of aerial bombardment. Economies are larger than any state: as the world’s population has increased and communications infrastructure is built out into the hinterlands, humankind has become increasingly interconnected. If we must reform nations, the need for security must be taken up by heterogeneous institutions such as Interpol.

    Policy arises from necessity: our enemies are not state actors. If we have overreacted in our pursuit of these non-state actors, such enemies loudly preach the overthrow of our state and many others. And those enemies do have plans, taken straight from the work of Bakunin and Lenin and Mao: provoke the state to anger and tyrannous overreaction, separating the state from the allegiance of the people. The states are playing into the hands of such anarchist maniacs, though they do not see it.

    The USA was built on the backs of cheap immigrant labour. The ranks of the military are full of people seeking citizenship, a trend going back to the American Civil War, where men came off the boats from Ireland and Central Europe and were immediately inducted into the US Army. All the while, one trend has continued: no wave of immigrants is more hated than by the previous wave of immigrants. Xenophobia and racism has been a factor in more nation-states than the USA: Koreans have lived in Japan for many years and they will never be offered citizenship.

    If our terror weapons are unmanned, our enemies have no compunction about using manned guidance systems to the same ends, as 9/11 proved. All this moaning about the ethics of the use of drones are merely the annoying bleats of those who would replace such patrols and such assaults with old-fashioned infantry patrols. I should like to take all such persons by the ear and make them carry the mangled body of an American infantryman out of the mountains for a few miles to a flat spot where a helicopter could extract that body, or watch as the dead of the Twin Towers were extracted from the smoking rubble. We did not ask for 9/11. The world which criticises us for our response was quite sympathetic for a few days. If it does not approve of America’s reaction, they have done nothing to help to quell an Islamic insurgency which destroys schools and murders schoolteachers. We were assaulted from the air and if we have responded from the air, tant pis. We were a large target. Ere they scrape their fingers at what we have become as a nation between that day and this one, they might consider allying themselves to our cause, for it is also their cause.

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    • Although I concur with much that you say an injection of history may also be instructive. A review of US policy in the middle-east since WW II will go far in bringing understanding to the current resentment of America by most Arabs. I am not an apologist for 9-11 by any stretch of the imagination. However, when viewed in the context of the despotic regimes kept in power in the middle-east by US policy and intervention it becomes clear that had we experienced a similar overt manipulation of our governance our animosity toward the perpetrators would be unbridled. No matter how corrupt or excessively abusive to its own citizens a regime might be, as long as its policy was consistent with US ambitions we have turned a blind eye.

      We have to a significant degree incited the contempt in which we are held.

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      • The American policy in the wake of WW2 cannot account the illiteracy of half the world’s Arabic speakers. The statistics are actually worse for the women.

        We did not draw up these insane borders: those were established by the British and French. When the Jews of Egypt and Iraq were ethnically cleansed out of their ancient homes in the 1940s, where exactly were they supposed to flee? Where is the outrage over those actions? Nobody’s going to re-establish the Jewish Quarter in Baghdad, once the largest group of Jews in the world.

        If the USA connived with despots, that sentiment cannot be squared with the notion, held by the same folks who damn us for that connivance — that we might have overthrown those despots and replaced them with democracies.

        It isn’t as if we didn’t urge reforms: after Gulf War Part the First, we asked the Emir of Kuwait to have some elections and he did. Guess who got elected. Yes, that would be the hard-line Islamists. Now Kuwait is more regressive than ever. We did not turn a blind eye to any of this madness. The much-hated Ba’athists were secularists and Arabists. Their philosophy was started by a Christian. For all the current furore about Syria, people tend to forget it’s the last multi-confessional state in that part of the world.

        And after Gulf War 2, the War on Iraq, we had elections, only to watch that miserable country descend into ethnic and religious civil war. Some while after that war began, James Baker, Bush41’s advisor remarked “Back then, people used to ask me, ‘Why didn’t you go all the way to Baghdad? Why didn’t you take out Saddam Hussein?’ [then snarling] You know, they don’t ask me those questions any more.”

        Saddam said some curious things just before he fled from power. He told the Americans they would find out why he had behaved as he did and they would do everything he had done in their turn. And we did, in our stupidity.

        Democracy is a home-grown thing: it cannot be transplanted. At some point, the peoples of the Middle East will be forced to come to terms with themselves and quit blaming the Americans for everything. And may God speed the day when I don’t have to endure this crap about how we deserve the contempt in which we are held.

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          • Yes, yes. And little Stormy Normy Schwartzkopf grew up in Tehran and would in time become a famous general. And the Shah’s SAVAK would pull out fingernails with pliers and the CIA would scold him and tell him not to do such things.

            The stupidest thing the Shah ever did, or more properly didn’t do, was to allow Ayatollah Khomeini to live. The Shah would die of cancer and the Ayatollah would return from exile and murder his way to power. And now they hang girls from tank barrels in Iran.

            You see, Dale, we never really made our client states eat our own democratic dog food. We didn’t have the stomach for turning these dictators we’d helped create into honest men. Well, that was long ago and I remember much of it. We don’t have the stomach for it any more now than we did then. Iraq’s Shiites have their own sadistic Ministry of the Interior. They’re torturing their prisoners. Seems to be happening in Afghanistan, too.

            And I suppose that’s America’s fault, as it was America’s fault in Iran. It’s never their fault, the people who actually do these things, the people we’re trying to help. We don’t really believe in democracy, not for them, not for us. We like the idea. It’s the bloody, greasy details which revolt us.

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            • You know, Blaise, I think you’re a great commentator and on the whole you’re one of my faves on this site. So please keep that in mind when I say: oh, please.

              Probably the most irritating thing about American foreign policy to non-Americans (like me, for instance) is the sheer whininess of it. Waah, waah, waah – our wonderful good intentions didn’t lead to paradise. Waah, waah, waah – the natives aren’t abandoning centuries of local custom to read Thomas Paine and Dear Abby. Waah, waah, waah – it’s not nice and shiny like we thought it would be. Jeez Laweez, man the bleep up, willya?

              Here’s a thought – the local dictators/tyrants/hereditary rulers (or all three together) didn’t feel the need to adapt local habits because at the time they became clients, the sole price was to be anti-communist, or anti-terrorist or anti-bad-guy-flavour-of-the-month. Say the right anti-USSR/bin Laden/whatever words and the Swiss bank accounts overflowed with money practically overnight.

              Americans worry about the good of the natives in fits and starts, and a wise local client-ruler knows that all he has to do is be patient and the fit will eventually end. And Americans just love the wild rush that comes with imagining themselves on the side of the downtrodden and oppressed. It’s always Lexington and Concord all over again. Hurray for us.

              It would be kinder to everyone, including Americans, if you just admitted it: we’re here for the oil. Do whatever else you want, we don’t care. Honest, we don’t care. We won’t even pretend anymore, it just raises hopes we have no intention of aiding. We’ll ignore you just like we did Eastern Europe and you’ll have a chance to acquire a homegrown core of freedom fighters who are realistic, ready to take advantages of change when it happens and have the level-headedness to be good government types if the oppressive power structure fails.

              America should go back to being a good example. That’s hard work, though, especially when Americans don’t believe in America anymore and haven’t for decades. It’s always military action with Americans now, as if there were no other legitimate form of social change in developing nations. Impatience for immediate action is an American weakness.

              But at the very least, please stop with the inspiring rhetoric. It’s getting to be a little much.

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        • “We did not draw up these insane borders: those were established by the British and French.” But we supported them and endorsed it and used it for our own ends.

          “When the Jews of Egypt and Iraq were ethnically cleansed out of their ancient homes in the 1940s, where exactly were they supposed to flee? ” Why should that have been our problem?

          “Where is the outrage over those actions? Nobody’s going to re-establish the Jewish Quarter in Baghdad, once the largest group of Jews in the world.” Mabye things might have been different if we’d have kept our noses out it. Regardless, why is it our problem to “fix”?

          “Saddam said some curious things just before he fled from power. He told the Americans they would find out why he had behaved as he did and they would do everything he had done in their turn. And we did, in our stupidity. ” ‘Cause we gotta LOOK like we’re doing something. Leaving it alone and walking away? Strange concept.

          “Democracy is a home-grown thing: it cannot be transplanted. At some point, the peoples of the Middle East will be forced to come to terms with themselves and quit blaming the Americans for everything.” Tru dat!

          “And may God speed the day when I don’t have to endure this crap about how we deserve the contempt in which we are held.” We deserve contempt enough, but we’re not the creator of ALL the world’s problems, just a lot of it.

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  3. Although I concur with many of the observations made above, I think a significant omission needs to be mentioned. By introducing cyber war at the International level in attacking the centrifuges of Iran the US has opened a front we are ill-equipped to defend. It is an acknowledged fact that cyber criminals are difficult to protect ourselves from and even more difficult to apprehend. It is also an acknowledged fact that most government infrastructure is porously defended at best. The infrastructure of our public utilities is even more at risk. It was foolish and irresponsible to invite the reprisals that are inevitable.

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    • We didn’t exactly invent cyber war and we didn’t start it. The USA, specifically the NSA, has provided an excellent solution to many such problems with SELinux, a free and open source solution.

      If we are ill-equipped to defend against such attacks, that situation will correct itself. Perhaps, in time, people will give up on closed-source solutions like Microsoft Windows.

      The very idea that it was foolish and irresponsible to invite reprisals is to put the cart before the horse. Every advance in human civilisation features concomitant vulnerabilities. As for well-acknowledged facts about our government infrastructure, such vulnerabilities quickly disappear when we quit covering them up with closed source implementations. But to say we started the cyber battle is grievously ill-informed nonsense.

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      • If the USA connived with despots, that sentiment cannot be squared with the notion, held by the same folks who damn us for that connivance — that we might have overthrown those despots and replaced them with democracies.

        There’s a simple fix for all this. On election day, we not only pick who leads the US, but also pick the leaders of all the countries in the Middle East. ^_^

        Seriously though, regarding infrastructure, I’m reminded of the naval switch from sails to coal. The wind didn’t require critical refueling bases which were distant and vulnerable, and we didn’t stop with steamers, instead creating a very infrastructure dependent society that is vastly more efficient and included a much greater ability to project force.

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      • We didn’t exactly invent cyber war and we didn’t start it. The USA, specifically the NSA, has provided an excellent solution to many such problems with SELinux, a free and open source solution.

        Back in the day, when the Bell System began deploying remotely-maintainable equipment on a large scale, they made the “expensive but necessary” decision to use a physically separate network to do that control and maintenance. And monitored the hell out of everything that was connected to that network and the software those computers ran. I am always appalled when I read that some workers can surf the Web, read their e-mail, and disconnect substations from the rest of the power grid from the same computer.

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            • Actual, effective security is difficult and inconvenient. The number of arguments I’ve had with testers over security policy is…disheartening, and worse still when I have the same arguments with fellow admins.

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              • Effective security begins with effective chains of command. Want secure applications and networks? Put people’s names on systems. Write use cases with actual stakeholders. Empower developers to be able to tell the PHBs of this wicked world:

                “Erm, no. We’re going to start developing this system once we’ve got a clear scope of the implications. Oh, and by the way, we’re going to run all this by the security team and the DBAs before anything else happens on this rooty-poot little system of yours. And here’s another concept you won’t like: you’re going to be held responsible for any security breaches. So just you relax, sir, we have this matter in hand and once we’ve got all those Roles and Responsibilities into LDAP, we’ll get back to you about implementation.”

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  4. Hey Nob, first of all, thanks for this piece. You know the Al-Awlaki situation is one that disturbs me greatly, and this is definitely a step in the right direction to prevent a recurrence. A few questions on that front re: the federal judges.

    1.) Is it safe to assume, that as part of this process, we would expect these judges involved to be provided with the necessary security clearance so that they can in fact review the actual evidence, and they don’t have to settle for ‘the evidence is secret, we can’t compromise our sources, so trust us when we say he’s a bad guy’ from the Dir. of Intelligence/Executive?

    2.) In addition to having access to the evidence, I would think we would want them to have some background in Intelligence, so they can evaluate the quality of the evidence and the means used to gather it as a factor in their decisions. At least they need to be educated enough in the process so that if the Director of Intelligence says ‘you really don’t need to know *how* we know that bit’ they know whether they *do* in fact need to know or not?

    3.) I would further assume that the number of judges thus security-cleared would be limited. As federal judges are appointed for life, how do we prevent these few judges from being ‘captured’ by the Executive/Dir. of Intelligence and essentially ending up as rubber stamps? Please understand that I don’t think they would intentionally try to function this way; but when you have a small tight-knit group of people functioning in secrecy and under pressure, it’s easy for a judge to say “they wouldn’t be asking unless it’s important; I trust them; we’ll cut this corner just once, and get me that paperwork tomorrow”; this is essentially the same kind of ‘Star Chamber’ we are trying to avoid. Is there any democratic mechanism we can use to minimize this, or do you see regular federal judge-appointment turnover, and the Congressional sunset-clause, as sufficient?

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    • Answering your points together.

      All judges that are part of the national security court would have the relevant security clearances. Appointments would probably work similarly to the Foreign Intelligence Surveillance Court, where federal judges are chosen by the Chief Justice to serve 1 seven year term. A new judge would be appointed every year as the rotating membership expires. Each judge would only be eligible to serve on the court once.

      I’m not fixed on the term years, maybe one six year term would work just as well. In any case, there would be regularly turn-over from the judiciary.

      The whole point of having a court of this sort is to allow classified evidence and to blunt the use of the State Secrets privilege. Essentially it removes the excuse that some things are just too sensitive for judicial review.

      Like Wittes proposes, I think the model law in this case would have to have some leeway in allowing initial surveillance or detention of suspects (but NOT killing) at the discretion of the executive branch before the case needs to be reviewed by the court. Wittes proposes a 7 day detention period IIRC, and I think that would work fine to keep things functioning but allow finer examination of government’s arguments.

      Finally I don’t think there needs to be an intelligence background for the actual judges. Rather in this case once appointed, the judges would be given access to staff/clerks from a pool of cleared individuals made up of both civilians (like surveillance law attorneys) and of military attorneys.

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  5. Regarding the drone warfare targetted killings:

    Absolutely, it’s troubling that the executive has more or less claimed the right to kill anyone anywhere without even a modicum of due process. But that’s only half the harm; if anything, the greater harm done by the drone strategy is the collateral damage. If a system were put into place to ensure some sort of judicial review over the targets of drone strikes, even if the system worked perfectly to ensure that no innocent was specifically targeted, we’d still be killing many innocent people if nothing else changed.

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  6. So if I read this correctly, the answer to keeping the state accountable is to implement more judges and “law” to hold accountable? I don’t see much sanity there. I would suppose this is the division between the ideal and the real. I consider the inability to correct the problem at the source will lead to the same outcome whether ideal or real.

    As a matter of security the state doesn’t tuck you in at night, and the only ones who are typically afraid of anarchy are those who are afraid of themselves. Borders should be kept against those who would fear themselves and give the state the sharpest sword.

    Maybe someday there will be no need of borders or drones.

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