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Book review published in Law and Politics Book Review 17(9):727-730, 2007.
Also available online from the journal.
Please cite as: Deflem, Mathieu. 2007. Review of In the Common Defense: National Security Law for Perilous Times, by James E. Baker. Law and Politics Book Review 17(9):727-730.
In this book, military judge James E. Baker analyzes the legal conditions of a variety of important matters related to national security, including the constitutional limits of security policies, electronic surveillance and intelligence activities, related military operations, and homeland security. IN THE COMMON DEFENSE starts from the premise that the United States faces at least four threats: the threat of terrorist attacks, especially of the kind that involves the use of weapons of mass destruction; the threat that measures may be implemented that weaken American democracy; the threat of reaching a compromise rather than a consensus on the nature of threats and their solutions; and, finally, the threat that other risks, such as international political instability and environmental degradation, will be overlooked. From this background, Baker focuses on national security law in terms of the risks associated with terrorist attacks involving weapons of mass destruction. He describes the threat, the meaning of national security, and the relevant constitutional framework, and subsequently analyzes various aspects of national security policy.
In describing the terrorist threat to the United States, Baker makes familiar and bold claims (in a chapter of a mere five pages). Al Qaeda and like-minded groups are trying to obtain weapons of mass destruction. The threat is described as “perpetual, indefinite, endless, and not just long” (p.9). On the basis of this premise, national security, as explained in Chapter 2, gains immediate urgency and is placed solidly in the hands of the President, who can assert constitutional authority both as chief executive and as commander in-chief. Congressional powers in these matters also exist, especially on a legislative level. Importantly, Baker argues, national security must be organized by balancing the protection of the nation’s physical security with provisions of the rule of law. Laws pertaining to national security should, according to Baker, provide the necessary tools to prevent or manage terrorist threats. In this respect, it is important, amongst other things, that presidential powers do not go unchecked but are subject to congressional oversight. Likewise, national security law and policies cannot go unrestrained at the cost of securing liberty.
What are the basic elements of the constitutional framework that can be applied to various national security polices? The US Constitution specifies the separation of powers in a government involved in a common objective. It also vertically divides powers between federal and state levels, and it secures a zone of liberty by inclusion the Bill of Rights. Focusing on the first issue, relevant constitutional articles include the President’s powers as chief executive, as commander in-chief and on matters of foreign policy, whereas congressional powers relate to the declaration of war, to the maintenance military powers, and various aspects of foreign policy. As statutes and case law are further building blocks of the legal foundations of national security, the courts also have a say in relevant matters, although courts have generally not been very active in this area.
The provisions of constitutional law can be tested in their applicability to a variety of counter-terrorism policies. Electronic surveillance is an important tool that has been used domestically and internationally for a long time. Among the constitutional limits are the prohibition against warrantless searches and expectations of privacy. The Foreign Intelligence Surveillance Act (FISA) of 1978 has taken on special significance in recent times because the Act recognizes limits to executive powers on the basis of congressional oversight and legal principles, such as the probable cause standard regarding whether a person is believed to be engaged in certain criminal activities. As to any warrantless programs that the President can authorize through the National Security Agency, such as the Terrorist Surveillance Program that President Bush initiated in 2002, Baker outlines both arguments for and against such practices. Speaking for such programs is the President’s authority to collect information in national security matters, but speaking against are violations of FISA requirements. The role of legal advisors is amplified in dealing with such matters.
National security in the United States is a practice that is built by many players. They include the President, the National Security Council (NSC), and the office of the Vice President. An important choice that must be made is to determine how far the President should rely on the NSC and/or his staff to determine relevant policies. Likewise, with respect to intelligence, the role of the Presidency is situated between those agencies that collect intelligence and the national security lawyers that advise the President in order for policy decisions to be legally sound. Intelligence is an obviously important aspect of counter-terrorism today, especially given the failures in that area in the years leading up to the events of September 11. Intelligence includes not only the collection of information, but also its analysis, counter-intelligence, covert activities, and cooperation or liaison with other intelligence services. Concretely, intelligence activities can lead to the extradition and rendition of suspects.
In two lengthy chapters, Baker addresses the use of military force and the formation of homeland security, respectively. With these chapters we come to the core of much of national security policy today as it is divided over both military and civilian functions. Militarily, the war power has taken center stage since the invasions in Afghanistan and, even more so, in Iraq. Relatedly, the notion of preemption as a valid war argument is to be debated. And in the execution of war strategies, also, issues have surfaced that need a careful review of decision-making practices. Briefly, Baker’s argument in such matters is to work towards a process of decision-making that allows for appropriate decisions to be made based on contextual circumstances rather than to opt for a rigid modus operandum.
The relevance of homeland security in counter-terrorism needs little debate. Yet, its proper organization is much more problematic as a wide variety of agencies at various levels of government are involved. Coordination problems are thus not only functional in nature, for instance between the FBI and FEMA, but also exist vertically among federal, state, and local levels. Generally, Baker argues, the Presidency has a role that is more geared towards the military rather than the civilian dimension. Finally, estimating the legal dimensions of national security policies, both at home and abroad, Baker accords a central place to the legal profession. The national security lawyer faces a delicate task in seeking to safeguard legal requirements, on the one hand, and working towards the fulfillment of effective policy, on the other.
Baker is a judge on the United States Court of Appeals for the Armed Forces and has served in various advisory roles for the US government. His is therefore not a scholarly book, but a policy oriented work that should be of interest to lawmakers and policy experts and practitioners. More specifically, also, the book is geared towards legal professionals who are involved in shaping national security policy. As such, this work should prove primarily valuable for law students and legal professionals who are interested in working in government functions where they can assist policymakers. At the same time, however, Baker is careful not to argue strongly for or against a particular policy outcome, but instead tends to bring out all legal issues he judges relevant, while maintaining a clear separation between the policy-making functions of government officials, on the one hand, and the policy-advising role of lawyers, on the other. There is a certain professional humility in the way in which Baker draws the contours of the legal professional’s role towards shaping national security policy. Yet, there might also be an unwitting and perhaps unnecessarily restrictive instrumental role accorded to the lawyer, which frees up the executive and, to a lesser extent, congressional branches of government to a relatively unfettered discretionary authority. The choice between the lawyer as activist or as guide is, in any case, not an easy one, and, to Baker’s credit, this delicate position is clarified in this work.
Political scientists and other social-science scholars who are interested in the legal foundations of national security policy will also find this work useful. From a broader scholarly viewpoint, it is to be noted, that Baker focuses on the legal dimensions of national security and has much less to say about the behavior of the institutions that are engaged in counter-terrorism practices. Besides the world of law, the organizational dynamics of the agencies of national security should also be brought into play to scrutinize national security as it is actually operating in the various fields of military and civilian operations. Also, Baker betrays the lawyer’s professional reservations and a rather uncritical portrayal of the terrorist threat facing the United States today. As such, this book begins and ends with the official doctrine of terrorism and can never escape its boundaries as it might be accomplished from a scholarly viewpoint. But as a professional work for the national security lawyer, this book will surely find its place.
See related writings on terrorism and police.
