Advancing a Free Society

As Barack Obama begins his second term as president of the United States, the nation confronts a range of formidable challenges at the intersection of national security and law.  Some challenges involve the inadequacies of both the existing criminal law and the contemporary laws of war to deal with transnational terrorists who are neither criminals nor lawful combatants but partake of aspects of both. Some involve the development of technologies of mass empowerment and mass destruction.  Some involve the proper interpretation of the Constitution and the best division of national security responsibilities among the legislative, executive, and judicial branches of the federal government, and the departments and entities within them.  Some involve understanding the ideas that motivate our adversaries.  Some involve the application of the international laws of war to complex conflicts abroad.  Some involve the changing character of the nation-state.  And some challenges involve several or all of these aspects at the same time.

In the essays that follow, members of the Hoover Institution’s Task Force on National Security and Law address several of the challenges with which the Obama administration and administrations before it have wrestled and with which the Obama administration and administrations that follow it will continue to grapple.  We do not pretend to agree on a solution or set of solutions. But we do agree on the nature of the problem.  And we are proud to share a defining sensibility.

The task force’s sensibility is defined in the first place by the conviction that questions of security and questions of law are increasingly intertwined and that the Constitution provides a sturdy and flexible framework that enables the nation to provide for its defense while securing citizens’ rights and respecting international law.  Our sensibility is also characterized by a clear recognition that the rise of transnational terrorism; the proliferation of increasingly inexpensive, mobile, and devastatingly destructive weapons; and the diffusion of power from nation states to international bodies and transnational organizations at one end of the spectrum, and to enterprising individuals at the other end, have generated novel and difficult questions of strategy and law.  It is marked by an acute awareness that war has increasingly come under the supervision of law, and that law has increasingly been employed as a weapon of war.   And it is committed to responding to the use and abuse of domestic and international law in the realm of national security by means of precise analysis, careful criticism, and prudent reform.

Such a sensibility, we believe, is crucial to advancing the nation’s interest in dealing effectively and lawfully with the daunting security threats it confronts.

Benjamin Wittes, member of the Hoover Institution’s Task Force on National Security & Law, discusses “many-to-many” threats. He examines cyberwarfare, as well as the potential dangers arising from biotechnology and robotics, and looks at what the Obama Administration can do to address these growing national security challenges.

Kenneth Anderson discusses the imperatives of American efforts to deny territory to international terrorists and examines the limitations of drone warfare.

Threats to American national security come from three sources: major powers, malevolent states, and weak or failed states.   There is, obviously, nothing new about tension with another major power, with the most obvious current challenge coming from China.

The other two sources of threat to American national security—malevolent states with effective national control but limited aggregate material capabilities and states that cannot control their own territory (failed or weak states)—are historically unique.  Threats from both of these sources are the result of the decoupling of underlying material capability (as indicated by GDP, population, military spending, and technological capacity) and the ability to inflict harm especially with nuclear and biological weapons.

In the case of malevolent states these capabilities are controlled by the state apparatus.  Although the ability of malevolent but under-resourced states to inflict catastrophic damage is new, the measures to counter these threats are not.  They include offensive, defensive and deterrent military actions, as well as economic sanctions.

Click here to read more.

One of the key principles of criminal law is that its substance and reach should be public and transparent.   But that’s not always the case with international criminal law—at least, not when the law is made on the hoof in a diplomatic rush.

Thus, while the Obama administration has struck a friendly tone toward the decade-old International Criminal Court and its penal jurisdiction over various acts of war, it will need to be mindful that the Court’s long-arm jurisdiction may reach to unexpected places and protagonists.  When the bell tolls, it may affect our own troops.

One of the curious features of the so-called “Rome Statute” of the Hague-based International Criminal Court—created in a five-week treaty conference in July 1998, and now enjoying a new prosecutor who hails from South Africa—is an unprecedented “looking backward” jurisdictional rule that purports to authorize the Court to investigate and prosecute wartime events occurring even before the country in question joined the court.   This oddity—article 12(3)—was added to the treaty in the midnight hours, on the very last night of the conference, by an unnamed member of the treaty “Bureau,” without any chance for discussion or debate before an adopting vote was taken on the whole text the next morning.  It has no legislative history and no named author.

Click here to read more.