Peter Berkowitz

Second Term Challenges at the Intersection of National Security and Law

 

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.

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