PNSR Recommends Active Role for Legal Community

December 2, 2011 in News, Report

WASHINGTON, DC – The Project on National Security Reform (PNSR) released today a new report, “The Legal Affairs Roundtable Series on National Security Transformation.” It calls on the legal community, especially the American Bar Association, to “contribute their authoritative voice[s] to the public debate on needed changes” to the national security system.

The report represents the work of more than eighty dedicated national security attorneys, practitioners, and subject matter experts, including Secretary Michael Chertoff, Admiral Dennis Blair, Judge James Baker and General Stanley McChrystal. During three roundtables, participants debated the legal impediments to, and remedies for, the optimal performance of the national security system — specifically addressing the National Security Council, unity of effort proposals and the Intelligence Community. Additionally, during a concluding conference, participants discussed the legal challenges to making reforms and the role of the legal community. Although based upon the discussions during the roundtable series, the resulting report is solely the responsibility of PNSR.

A grant from Carnegie Corporation of New York funded the roundtable series. The American Bar Association’s Standing Committee on Law and National Security, Bingham McCutchen LLC and the Bipartisan Policy Center’s National Security Preparedness Group joined PNSR as sponsors. Arnold & Porter LLP and the Woodrow Wilson International Center for Scholars also supported the roundtable series.

The majority of roundtable participants concluded that sweeping reform of the national security system, which encompasses the complex whole of all national security institutions, is necessary. They found the system “mostly ‘stove-piped’ and hierarchical, posing roadblocks to integrated [whole-of-government] consideration of national security policy and issues.”

Most roundtable participants recognized that the current National Security Council apparatus “struggles to be an effective management and integration arm of the president in a security environment characterized by increasing complexity, uncertainty and speed.” Debated remedies included expanding the role of the national security advisor to serve as a national security manager and strengthening the ability of the National Security Staff to integrate the expertise and capabilities of departments and agencies.

Concerning unity of effort in national security operations abroad, participants generally agreed on “the need for better interagency cooperation and for executive cross-agency authority to be developed.” They concluded, “Existing solutions, such as czars and lead agencies, have proven inadequate.” In particular, participants urged improved integration by departments and agencies in their execution of U.S. regional policy abroad and the need for interagency teams in the field.

Despite passage of the Intelligence Reform and Terrorism Prevention Act of 2004, participants found “the required level of integration across the sixteen components of the Intelligence Community has not been achieved.” Key areas for reform focused on the role of the Director of National Intelligence, oversight of the Intelligence Community and information-sharing policies.

Noting the important role of lawyers in any reform effort, the concluding conference produced several recommendations for the legal community:
• Develop a definition for national security law and an agreed-upon body of statutes and executive orders that make up this law.
• Draft and advance transformation proposals in all forms.
• Outline the scope of executive authority in making institutional changes and what reforms require legislative action.
• Advocate publicly for national security transformation.
• Review how congressional organization affects attempts to create a whole-of-government approach to national security issues.