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.

The Silver Lining of Indefinite Detention

By Matthew Gerke, CNSL Fellow

The debate over detention in the War on Terror is framed in stark terms: how can a humane country possibly justify detaining its enemies for years with little hope of eventual release?  The Administration generally attempts to justify indefinite detention by invoking fears that, if released, detainees will return to the battlefield. (In fact, these fears have at times turned out to be well-founded; some detainees released from Guantanamo have been recaptured fighting against the United States.)  Legal scholars, human rights activists and other critics of the administration tend to minimize or ignore these concerns, quite rightly focusing on the harm to detainees from indefinite detention and coercive interrogation.  But there is another issue that has been ignored by those most concerned about the rights of detainees: indefinite detention and harsh interrogation techniques may, in some circumstances, actually protect enemy combatants themselves by giving the government an attractive alternative to killing them on the battlefield.

It is important to remember that in combat situations, commanders are legally permitted to kill, rather than capture, enemy combatants -- the decision to capture the detainee to begin with is thus entirely discretionary. The law of war requires armies to take reasonable precautions to avoid injuring civilians, even if such precautions endanger their own soldiers. No such legal rule requires a nation to put its soldiers at risk to capture, rather than kill, enemy combatants.  A combatant on the battlefield is indisputably a legitimate target under the law of war, and a military commander is legally entitled to kill him, if attempting to capture him would cause some danger to the troops.  Of course, the law of war's principle of proportionality requires commanders to use no more violence than is necessary to achieve their legitimate ends.  Killing a combatant is clearly illegal, for example, when enemy combatants are surrendering.  However, risking American soldiers to effect a live capture is entirely a matter of practical military policy -- not legal necessity. 

That practical military policy hinges crucially on whether a commander can know with certainty that captured enemy combatants will be permanently removed from the field of battle.  An enemy killed will never again threaten American troops.  An enemy detained offers no such certainty.  Thus, detention rules that offer a possibility of eventual release before the end of hostilities gives commanders a strong incentive to kill, rather than capture, their opponents.

Similarly, legal rules that result in better intelligence increase the incentive to capture, rather than kill. And conversely, any limitation on interrogation methods that decreases the amount of useful information that can be extracted from detainees increases the incentive to kill. Despite what we all might wish, harsh interrogation techniques are probably more effective than other techniques at extracting useful information from detainees (the effectiveness of torture is controversial, but the effectiveness of other techniques, such as sleep deprivation, is well established). If harsh interrogation techniques are banned, then the value of a live capture diminishes, and commanders become more inclined to spare their own men by ordering airstrikes from a safe distance.

If you think that this analysis never occurs, think again; I have personally heard uniformed military officers discussing whether it makes sense to put American soldiers at risk to capture Iraqi insurgents who will be back on the street in a year. I am not in any way advocating killing rather than capturing, and American soldiers have a proud tradition of placing themselves at risk to make war more humane. However, one predictable result of making it more difficult to interrogate detainees, or hold them indefinitely, will be fewer live captures, and more kills. The human rights community should consider whether this is an outcome they are willing to accept.

We must therefore be cautious when designing legal rules of detention that we do not inadvertently encourage the killing of the individuals that we are trying to assist.  Rules could be constructed to take military incentives into account. For instance, we might permit indefinite detention only when it would be lawful to kill the enemy combatant.  Many detainees in Guantanamo have been picked up by law enforcement (who don't have the option to kill in lieu of capture), or handed over by allies. In situations such as these, where the detainee was not a lawful target to begin with, there is no reason to worry that we are taking away the military's incentive to capture.

It should be clear from this analysis that making detention a less attractive option for the United States will lead predictably to more kills and fewer captures in the field.  So, ask yourself, if you were an Afghan insurgent, watching a company of American soldiers closing in your position, what set of legal rules would you want?  Would you rather face the possibility of indefinite detention, or the certainty of an airstrike?