Georgetown Security Law Commentary

Merging the NSC and the HSC: A Legal Footnote

By: Justin Rubin, Senior Counsel, Legal Affairs Department of the Project on National Security Reform

Last Tuesday, the President announced the merger of the staffs of the National Security Council (NSC) and Homeland Security Council (HSC) within one National Security Staff.  The President, however, did not merge the Councils themselves, instead maintaining them as two separate entities.  The public discussion, and comments from White House aides, indicate that the President took this step because he could not legally merge the two Councils without a new Congressional enactment.  A close legal analysis, however, makes clear that the President has ample authority to merge the two entities without Congressional approval.  

The President’s decision comes after a 60-day review of the current structures of the HSC and NSC and whether the integration of those bodies would enhance our nation’s security.  Though the President concluded after the review that merging the HSC and NSC staffs would more effectively integrate the instruments of national power, in contrast to many people’s expectations, he decided not to abolish the HSC.  In fact, the White House pledged to maintain the HSC "as the principle venue for interagency deliberations on issues that affect the security of the homeland."  Though the President’s decision to merge the two staffs is a much-needed and welcome change, maintaining two separate Councils reflects a specific choice to preserve a distinct body for advising the President on threats to the homeland such as terrorism, natural disasters, health-related crises and weapons of mass destruction.

The confusion over the merger’s legality was highlighted by Spencer Hsu’s article in last Wednesday’s Washington Post, attributing to unnamed White House aides two reasons for maintaining the HSC:  "Doing so will improve state and local officials' access to the White House and does not require an act of Congress." While the first may be true – it is essential that state and local officials have sufficient access to the White House homeland security coordination body – the second, which implies that the further integration of the Councils requires statutory authorization, is not.  The President does have the authority to merge the Councils and his decision not to merge them should be viewed in that light.

The National Security Council and Homeland Security Council were created by the National Security Act of 1947 and the Homeland Security Act of 2002, respectively.  The acts establish the Councils, set their membership, make them responsible for advising the President on interagency coordination, and create two separate staffs reporting to two separate Executive Secretaries. Merging the two Councils, as the President’s actions demonstrate, requires two unique legal decisions: whether to merge the two Councils’ staff and whether to merge the two Councils, which both currently exist in statute. Contrary to the view expressed in Spencer Hsu’s article and elsewhere, the President has the legal authority to do both.

First, the President has clear legal authority to merge the Council staffs.  While the statutes create separate NSC and HSC staffs reporting to statutorily created NSC and HSC Executive Secretaries, the laws do not require that the staffs, or the Executive Secretaries, be different. The President, therefore, can merge the Councils’ staffs into one staff by dual-hatting one individual as both the NSC and HSC Executive Secretary and require that the staff serve as a single unit reporting to that one individual.  This requires no legal change.

Second, despite claims that merging the HSC and NSC would require an act of Congress, the President has multiple means to effect a de facto merger of the two Councils without a statutory change.  Firstly, the Homeland Security Act gives the President the authority to "convene joint meetings of the Homeland Security Council and the National Security Council with participation by members of either Council or as the President may otherwise direct." 6 U.S.C. 496. This statute gives the President both the authority to call joint meetings and to choose who shall participate in such meetings – a power the President traditionally exercises, but does not statutorily have.  As a result, using this authority, the President could merge the two Councils by designating all future NSC and HSC meetings as joint meetings.

A second option for merging the Councils would be to call meetings of only one of them.  While the Councils are tasked with advising the President, neither the National Security Act nor the Homeland Security Act requires the President to call meetings of either. This reflects the limits of congressional authority: Congress has no Constitutional authority to require the President to listen to specific individuals’ or Councils’ advice.  In fact, even President Truman, who signed the NSC into existence, questioned the constitutionality of the NSC on such grounds.  See Cody M. Brown, The National Security Council: A Legal History of the President’s Most Powerful Advisors, Project on National Security Reform 10 (2008). As a result, had President Obama so desired, he could have merged the Councils by placing traditional homeland security issues within the jurisdiction of the NSC and inviting department heads, such as the Secretaries of Homeland Security and Transportation, to relevant meetings of the NSC as he is empowered to do by the National Security Act of 1947.  This approach would merely require not calling meetings of the HSC, clearly within the President’s constitutional and statutory authority, and would, in effect, merge the Councils.

It is curious that White House aides would cite the need for Congressional action as a reason for the President’s decision to merge the Council staffs, but not the Councils themselves.  The President has ample authority, given to him by the Constitution and the Congress to merge the NSC and HSC.  Though we do not know, beyond the statements attributed to White House aides, whether this was a real concern, it should not have been.  While many policy and political arguments exist for keeping separate Councils – including enabling state and local officials’ to access the White House, maintaining a forum focused purely on homeland security issues, allowing the President and future presidents greater flexibility in deciding how to use the NSC and the HSC, and, potentially, avoiding a political fight with those in Congress who oppose merger – the need for an act of Congress is not one of them. 

Rubin’s views are not necessarily representative of PNSR’s.

Scholarship: Recent articles about targeting the domestic muslim population

"Poetic Injustice: A Case Study of the UK's Anti-Terrorism Legislation" (Retfærd: The Nordic Journal of Law and Justice, 2008) by Reza Banakar (University of Westminster School of Law). This paper explores the effects of anti-terrorism policy and legislation on Muslim immigrant communities, in general, and British-born Muslims, in particular.  Focusing on R v Malik, in which the Court of Appeal quashed a conviction on terrorism charges, the article first examines how the legal and policing measures to combat the threat of terrorism interact with the ethno-cultural relationships in contemporary Britain. Second, it views the UK's anti-terrorism policy and legislation in relation to the "culture of control", which marks the move from a criminal policy based on "penal welfarism" to a governance of crime based on "the management of risks". Finally, it sheds light on the tension between the UK government and the judiciary. HT to National Security Advisors.

"Law Enforcement and Intelligence Gathering in Muslim and Immigrant Communities After 9/11" by David A. Harris (University of Pittsburgh School of Law) (New York University Review of Law & Social Change, Vol. 34, No. 1).  During the past several years, law enforcement has begun to place informants in mosques and other religious institutions to gather intelligence, undermining efforts to build trust, and the ability to gather intelligence from voluntary sources within the Muslim community.  Locally negotiated agreements on the use of informants represent the best alternative route toward both security against terrorists and keeping Muslim communities inclined to assist in anti-terrorism efforts. In these agreements, law enforcement might agree to limit some of its considerable power to use informants, in exchange for the continued cooperation of the community. The article discusses how such agreements might be reached, what they might strive to do substantively, and also addresses the problems they would encounter. HT to National Security Advisors.

Scholarship: "Cyber-Deterrence"

"Cyber-Deterrence" by K. A. Taipale (Center for Advanced Studies in Science and Technology Policy). Traditional strategies of deterrence as generally applied in national security and law enforcement have focused primarily on raising the cost of undesirable behavior in order to discourage that conduct. But the traditional emphasis on imposing a cost or penalty on a specific adversary alone may not be sufficient in cyberspace because of its particular characteristics - in particular because of its dual use nature, the difficulty in differentiating a probe from an attack, the scale-free and unbounded nature of potential consequences, and the limited capabilities for definitive attribution. This chapter examines a new model of deterrence based on four factors: penalty (the traditional notion of retaliation), futility (the notion of frustrating attack through resilience or recovery thus eliminating any gain to the attacker), dependency (the notion of interdependence as moderating influence), and counter-productivity (the notion that collateral backlash can check behavior). HT to National Security Advisors.

Scholarship: "Biotechnological Research on the Most Dangerous Pathogens: Challenges for Risk Governance and Safety Management"

"Biotechnological Research on the Most Dangerous Pathogens: Challenges for Risk Governance and Safety Management" (Science Direct) by Michael Baram (Boston University School of Law). Biotechnological research on the deadliest pathogens has grown into a vast enterprise in the United States, with over $50 billion from federal agencies. This paper describes this enterprise, defines several risk scenarios unrelated to terrorism which threaten lab workers and the public with lethal and contagious pathogenic disease, and evaluates the official policy framework for decision-making with regard to preventing and responding to the risk scenarios. It finds that the framework emphasizes physical security and secrecy to prevent terrorist exploitation of the enterprise, but fails to sufficiently address prevention of lab mishaps, accidental releases, and other incidents during the routine conduct of research which would expose workers and the public to the lethal pathogens.  The article makes recommendations regarding these inadequacies and urges application of lessons learned from safety science experience with other hazardous technologies. HT to National Security Advisors.

Scholarship: "Emergency Preparedness for a Pandemic Under International Law"

"Emergency Preparedness for a Pandemic Under International Law" by Renee Dopplick.  If a virulent disease broke out in a state unable or unwilling to respond with effective disease containment strategies, the lack of an effective response could turn a localized outbreak into a worldwide pandemic. This paper explores the legal authority of the international community to respond to a severe infectious outbreak at the source of an outbreak within an uncooperative state. The discussion explores the powers of the UN Security Council acting under the Chapter VII powers, the emergent humanitarian doctrine, and the enforcement mechanisms of the International Health Regulations under the World Health Organization. HT to National Security Advisors.

Scholarship: "Protecting Refugees in the Global 'War on Terror'"

"Protecting Refugees in the Global 'War on Terror'" (Indian Juridical Review) by Ben Saul (University of Sydney).  This paper focuses on the growing pressure to automatically exclude suspected terrorists from refugee status since the late 1990s, including exclusion based on mere membership of terrorist organizations. However, in the absence of an international definition of terrorism, reference to terrorism in exclusion decisions endangers refugees and violates international refugee law. The paper argues that exclusion must be based on an individual assessment of whether a person meets the specific criteria for exclusion in the 1951 Refugee Convention, and the existing exclusion grounds are adequate for addressing the serious challenges posed by modern terrorism.  HT to National Security Advisors.

Scholarship: "J.S. Mill and the American Law of Quarantine"

"J.S. Mill and the American Law of Quarantine" by Wendy E. Parmet, (Northeastern University School of Law) in Public Health Ethics, 2008.  This paper looks at the American law of quarantine in light of the work of John Stuart Mill, whose harm principle has often been used to justify the practice of isolating and/or quarantining individuals to prevent the spread of an infectious disease. Despite important parallels between quarantine law and both the authorizing and prohibitive aspects of Mill's harm principle, the contemporary law of quarantine does not reflect either Mill's concern for the potential abuse of executive authority nor his recognition that quarantine is only ethically justified when the broader public health policy environment in which quarantine is applied is itself ethically sound. Hat tip to National Security Advisors.

Scholarship: "The Terrorism Exception to Asylum: Managing the Uncertainty in Status Determination"

"The Terrorism Exception to Asylum: Managing the Uncertainty in Status Determination" (University of Michigan Journal of Law Reform, Vol. 41, No. 3, 2008) by Won Kidane (Seattle University School of Law).  The Immigration and Nationality Act ("INA") excludes terrorists from receiving asylum. This article argues that the substantive criteria and the adjudicative procedures set forth under the INA for the identification of the undeserving terrorist inevitably exlude those who are neither terrorists nor otherwise undeserving. Moreover, the existing scheme provides little help in screening out real terrorists. The article demonstrates these flaws and proposes some substantive and procedural modifications. HT to National Security Advisors.

Fear Mongering: Are the Uighurs "a Threat to the Public at Large"?

By Professor Marty Lederman

The Department of Justice has filed, in the U.S. Court of Appeals for the D.C. Circuit, its Motion for Stay Pending Appeal and for Expedited Appeal in the case of the 17 Uighur detainees who Judge Urbina has ordered released. Lyle Denniston's title for his post describing the government's filing is (appropriately) to the point: "U.S. sees danger if detainees come."

That about sums it up: The government's strategy in its brief is to persuade the court of appeals that Judge Urbina's ordered release of the 17 Uighurs, into Uighur communities in the U.S., "would pose a serious security risk."

That sounds ominous -- and if it were true, it presumably would be a compelling reason to question the particular form of relief that Judge Urbina has ordered. But is it true?

I don't have any personal knowledge of the detainees or their history, and so I can't say for certain that the Uighurs would not present a threat to public safety. But the government hasn't cited any evidence that supports the prognostication of such a dire prospect.

Indeed, as the Uighurs point out in their reply brief, in the case of at least nine of the detainees, there is no evidence the government could possibly identify, because the government has failed to file a habeas return as to those detainees, and thus the record is barren.

The government's alarms are especially jarring because just last week, Judge Urbina offered the government an opportunity to make a factual proffer of "the security risk to the United States should these people be permitted to live here," and the government lawyer reported that he did not have "available to me today any particular, specific analysis as to what the threats from a particular individual might be if a particular individual were let loose on the street."

Moreover, the U.S. has been trying for several years to resettle these detainees among foreign civilian populations -- an effort that strongly belies the notion that they are especially dangerous.

Understandably, then, Judge Urbina found that the government "has presented no reliable evidence that Appellees would pose a threat to U.S. interests."

In the absence of any evidence of a threat, the government argues that "it is self-evident" that compliance with the district court's order "could pose a threat to the public at large."

But what, exactly, is it that makes it so "self-evident" that the Uighur detainees "could pose a threat to the public at large"? The government appears to rely upon four things:

1. First, the government states that the Uighurs (most of them, anyway) are "trained fighters," twelve of whom claim to have had weapons training at military camps in Afghanistan. (DOJ concedes that one of the detainees, Arkin Mahmud, was captured before he engaged in any such training. It does not explain in what way the other four detainees are "trained fighters.")

2. Some of the detainees have, as the DOJ puts it, stated that they sought the training "for the purpose of attacking China or Chinese interests."

3. "Congress has made a legislative judgment in the immigration laws that individuals who seek to commit terrorist acts against a sovereign government -- and who receive weapons training for the purpose of doing so -- are not safe to be admitted into the United States" (citing 8 U.S.C. 1182(a)(3)(B)).

4. The government asserts that Parhat and some unknown number of other Uighurs were "a part of or a supporter of" the East Turkistan Islamic Movement (ETIM), a group that the Secretary of State has designated a terrorist organization.

Let's take a look at these claims one by one.

First, the detainees are said to be "trained fighters," twelve of whom have admitted to having had weapons training at military camps in Afghanistan. Even if one credits evidence outside the habeas record, however, the most that this would show is that 12 of the 17 detainees had some training in the use of rifles, and in the case of five of those twelve detainees, the use of AK-47s. That training was, by all accounts, to assist them in fighting against the Chinese government. Being trained in the use of rifles -- for the express purpose of fighting a government halfway around the world -- surely is not sufficient to establish any threat to persons here in the U.S. Many people living in the United States are, of course, trained in the use of rifles.

Second, and to similar effect, DOJ tries to support its claim of dangerousness by explaining that the detainees sought the training "for the purpose of attacking China or Chinese interests." The quotations the government offers in support of this assertion, however, do not say anything about "attacking" China or its interests. Instead, they are all to the effect that (some of) the Uighurs sought firearms training in order to "fight against" or "fight back against" the Chinese government -- and in one case (Mahnut), in order to take "action against the Chinese military." That the Uighurs wanted to be prepared to fight the Chinese government is not a surprise, and hardly make them "attackers" of China, let alone terrorists. More to the point, however, these quotations provide no reason to think that these detainees pose any danger at all to the U.S. or its people in the event the Uighurs are released to live here temporarily under the conditions and supervision of the district court.

Third, the Department claims that Congress itself has made a "legislative judgment" that any individuals who seek to commit "terrorist acts" against any sovereign government -- and who receive weapons training for the purpose of doing so -- "are not safe to be admitted into the United States." The government cites 8 U.S.C. 1182(a)(3)(B) in support of this argument.

There are several problems with this argument:

For one thing, the government has cited no evidence that any of the detainees, let alone all 17 of them, "seek to commit terrorist acts" against anyone, let alone against a sovereign government. (The statute in question has several broad definitions of "terrorist activity." 8 U.S.C. 1182(a)(3)(B)(iii). As far as I know, the government has not cited any evidence that any of the Uighurs has any intent to engage in any such activities.)

Moreover, the statute does not provide that any person who "seeks" (i.e., hopes or intends) to commit any terrorist activity against another foreign government is "not safe" to be admitted into the U.S. What it says, instead, is that a person is inadmissible under the immigration laws if he has engaged in a terrorist activity; or is likely to engage in terrorist activities after admission; or has incited terrorist activity with an intention to cause death or serious bodily harm; or is a representative or knowing member of a designated foreign terrorist organization; or has used a position of prominence within a country to endorse or espouse terrorist activity in a way that the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities; or is a spouse of a person described in one of those categories. As far as I can tell the government has not pointed to any evidence that any of the 17 Uighurs falls within any of these statutory categories.

Finally, even assuming that each of these statutory categories were a proxy for dangerousness within the United States, and if there were evidence that the detainees fit within those categories (which there is not), that would only mean that they are inadmissible under the immigration laws, not that they can be detained indefinitely. Indeed, in two recent cases (Zadvydas v. Davis and Clark v. Martinez), the Supreme Court has held that inadmissible aliens must be released into the United States after six months of detention if there was nowhere else to send them -- even where they had been convicted of a crime.

Fourth, the government hints at one other basis for its claim that the Uighurs "would pose a serious security risk": It asserts that Parhat and some unknown number of other Uighurs were "a part of or a supporter of" the East Turkistan Islamic Movement (ETIM), a group that the Secretary of State has designated a terrorist organization.

Now, if some of the Uighurs were members of ETIM, and knew it was a terrorist organization, such knowing membership would make them ineligible for admissibility into the U.S. under the immigration laws. However, (i) inadmissibility under such laws does not necessarily preclude the remedy Judge Urbina ordered, and the Constitution might still require it (cf. Clark and Zadvydas); (ii) such membership certainly would not mean that the Uighurs pose a "serious security risk" within the United States (since the ETIM's only enemy is China); and, most importantly and most tellingly . . .

. . . (iii) DOJ does not provide any evidence that any (let alone all) of the Uighurs is "a part of or a supporter of" ETIM. The evidence DOJ cites are the statements of Parhat and other detainees, described at pages 17-18 of the D.C. Circuit's Parhat opinion. The only aspect of those statements of any relevance here is Parhat's apparent statement that one Hassan Maksum was "a leader" at the camp at which he trained. The government claims that Maksum is also a leader of ETIM. Even if this were supported by the record, it would hardly be evidence that Parhat, or any other detainee, is a part of ETIM -- let alone that all 17 Uighurs would pose a threat to the security of Americans.

* * * *

I should emphasize that I don't know for certain how this unique and unfortunate case should be resolved: Perhaps there is some evidence in a record somewhere, not cited by DOJ, that demonstrates that some of the Uighurs would pose a real danger to persons in the U.S. Perhaps releasing them within the United States would do incalculable damage to our foreign relations with China, and perhaps there is some (undisclosed) legal theory under which that damage to our Chinese relations alone is sufficient grounds for keeping these detainees indefinitely detained at GTMO (although I'm doubtful). Alternatively, perhaps the ideal thing for the courts to do here is to await the next Administration, which might be more successful than the Bush Administration at finding another country to which the Uighurs could be sent.

I don't know enough about the facts and the law to opine confidently on any of these questions.

But the Department of Justice has instead opted to rely primarily on the notion that Judge Urbina has ordered the release of "terrorists" into the United States -- that such a remedy for their unlawful detention of more than six years "would pose a serious security risk." And as to that contention, the government has failed to make its case.

I doubt the court of appeals will credit the government's unsupported allegations of dangerousness. But even if it does not, the government's latest filing will have had a deleterious effect on the case: As the New York Times now reports, the allegations in DOJ's brief have virtually precluded the possibility that the Uighurs can be sent to another nation, a solution that would resolve this case.

"The administration stepped up its search for a new home for the detainees," the Times reports, "after a federal judge ordered them to be released inside the United States a week ago." Yet now this "urgent effort by the Bush administration to find a country willing to accept [the] 17 detainees held at Guantánamo Bay, Cuba, has stalled because of a bitter dispute inside the government about whether the men are dangerous." The State Department is, quite understandably, furious:

People briefed on the issue said that the State Department, which is charged with trying to resettle Guantánamo detainees by coaxing other countries to accept them, argued that the Justice Department compromised diplomatic efforts with a court filing Friday that asserted that the Uighurs should not be released inside the United States. The filing described them as “a danger to the public” and as men who had been trained in insurrection. “Based on what they were saying in the brief, it made it impossible to conduct negotiations,” said an administration official who spoke on the condition of anonymity because he had not been authorized to discuss the dispute.

Imagine how those State Department negotiations must have gone: Our diplomats have been begging some other nation to accept the Uighurs, notwithstanding that the nation will incur the wrath of China. State gets close, but no luck. The court of appeals' order gives it a short reprieve, and it's working furiously to convince Nation X that it can safely accept the Uighurs. Then the United States's own Justice Department argues to the judiciary that releasing these detainees into a civilian population "would pose a serious security risk" and that it is "self-evident" they would pose a "threat to the public at large." At which point Nation X quite understandably tells the State Department to go take a hike. DOJ has thereby scuttled the last, best chance (within the Bush Administration, at least) to find a solution to the Uighur problem that is palatable to everyone (except perhaps China).

And for what?