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:
- The treatment of non-citizens as part of non-state actor groups in active or suspected belligerence against the United States.
- The treatment of US citizens collaborating with said belligerents.
- Determining where technological developments such as cyber warfare and unmanned systems fit into the overall structure of the state.
- Balancing the tradition of judicial review of executive actions with the need for secrecy.
- 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):
- The reviewing body must be staffed by federal judges.
- The parties involved would have access to counsel.
- 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)
- The Executive Branch must report to Congress what groups are considered covered under the court’s purview at least once every six months.
- The court has no jurisdiction for US citizens or legal residents within any territory the US has de facto sovereign control over.
- The court’s jurisdiction would sunset once every three years unless reauthorized by Congress.