(subscription), Sibylle Scheipers discusses the role of US President
Barack Obama's moves to reform the detention system as a step towards
renewing close transatlantic ties and facilitating transatlantic
cooperation. But she also argues that it poses a difficult challenge to
Europeans. Nigel Inkster, Robert Whalley, and Matthew Waxman comment,
and Scheipers responds.
By: Justin Rubin, Senior Counsel, Legal Affairs Department of the Project on National Security Reform
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.
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.
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.
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.
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.
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.
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.
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
"Microfinancing Terrorism: A Study in Al Qaeda Financing Strategy"
(in State of Corruption, State of Chaos: The Terror of Political Malfeasance, M. Cox, ed., 2008) by
Tolga Koker (Yale University) and
Carlos L. Yordan (Drew University).
This article explains why individuals support the work of charities that support jihadist operations, even when they may not agree with these organizations' agenda. It first explains why al Qaeda and other jihadist groups use charities to raise most of their funds. It then introduces a behavioral model, arguing that individual Muslims donate
monies to Islamist charities that support jihadist causes as a response
to social pressures, in an attempt to avoid social seclusion. It concludes with policy implications in the ongoing global struggle against terrorism.
HT to National Security Advisors.
"Bank Liability Under the Anti-Terrorism Act: Dispelling the 'Routine Banking Services' Defense in Material Support Cases"
by Stephen I. Landman (Catholic University of America - Columbus School of Law).
This article evaluates civil liability for financial institutions that provide material support to terrorist organizations, analyzing the development of the ATA and related legislation proscribing material support to terrorist groups and highlighting the evolving statutory construction by looking to the body of case law surrounding lawsuits against the terrorist support network. Using the lawsuit filed on behalf of Daniel Pearl as a case study, this article concludes that a broad interpretation of the statute is not only in line with the legislative intent of the ATA, but is also the only way in which it can be effective in halting terrorist financing.
"The Best Tool for the Job:
The U.S. Campaign to Freeze Assets of
Proliferators and their Supporters" (Virginia Journal of International Law, 2009) by CarrieLyn Donigan Guymon (Golden Gate University School of Law).
This article reviews the legal framework in the United States for
freezing the assets of individuals and entities engaged in proliferation-related
activities. It argues that the United States and the international community must
maintain nonproliferation sanctions because these sanctions protect the
integrity of the national and global systems and actors within the jurisdictions
imposing them. Regardless of their impact on the target, nonproliferation sanctions
must be used to send that strong signal of abhorrence for proliferant
"EU Law, International Law and Economic Sanctions Against Terrorism: The Judiciary in Distress?"
(Fordham International Law Journal, Forthcoming)
by P. Takis Tridimas (Queen Mary University of London) and Jose A. Gutierrez-Fons (Queen Mary University of London, School of Law).
This article examines the relationship between European Union
law, international law, and the protection of fundamental rights in the
light of Kadi, Al Barakaat, and other recent case law of the European Court of Justice (ECJ) and the
Court of First Instance (CFI) relating to economic sanctions against
"Closure, Caution and the Question of Chilling: How Have Australian Counter-Terrorism Laws Affected the Media?"
(Media & Arts Law Review, 2009) by
Lawrence McNamara (University of Reading - School of Law).
This article considers the proposition that Australia's counter-terrorism laws restrict the ability of the media to report on matters related to terrorism and security. It begins by examining the potential effects of these laws on the media's ability to access and publish information about terrorism offences. It then presents the findings of a project that explores the actual effects of the laws. It argues that counter-terrorism laws have had substantial direct effects on court reporting and, while it cannot yet be said that there is a chilling effect, a very worrying range of issues remains and the laws have indirect effects on the media which are detrimental and complex.
"Boumediene's Quiet Theory: Access to Courts and the Separation of Powers" (Notre Dame Law Review, Vol. 84, 2009) by Stephen I. Vladeck (American University Washington College of Law). At the core of Justice Kennedy's majority opinion in Boumediene v. Bush are his repeated suggestions that habeas corpus is an integral aspect of the separation of powers. At least where habeas corpus is concerned, it seems clear from Boumediene that the purpose of judicial review appears to be as much about preserving the role of the courts as it is about protecting the individual rights of the litigants. This article takes on this "quiet theory" behind Kennedy's opinion and asks whether it might have applications beyond the unique context of habeas corpus, especially with regard to the more general constitutional right of access to the courts. Access to courts is as much about protecting the courts as it is about vindicating the individual rights of litigants. Thus, going forward, Boumediene might do more than just answer the circumstance-specific question about habeas corpus rights for non-citizens detained as "enemy combatants"; it might provide the starting point for a new theory of access to the federal courts in particular that could allow us to rethink a number of tenets of federal courts doctrine.