Friday, May 24, 2013

The Debunking: National Security

It's not generally known how new the phrase "national security" is to our political lexicon. It first made its appearance in the first post-World War II years, when various persons inside and outside the Truman Administration were seeking rationales for retaining the greatly enlarged military that had been mustered and funded to win the war. It was "institutionalized" in the National Security Act of 1947, the very first Act of Congress to define "transnational threats" to the "national security:"

    For purposes of this subsection, the term "transnational threat" means the following:
    (A) Any transnational activity (including international terrorism, narcotics trafficking, the proliferation of weapons of mass destruction and the delivery systems for such weapons, and organized crime) that threatens the national security of the United States.
    (B) Any individual or group that engages in an activity referred to in subparagraph (A).

[Sections 101.i.5 (A), (B)]

Note that the enumerated "transnational threats" are not all the "transnational threats." More strikingly, though the terms "national security" and "national security interests" occur innumerable times in the text of the Act, the "national security" and "national security interests" of the United States are never defined.

Do you think you know what those sonorous phrases mean?

When a word or phrase is without a definition, we must infer its meaning from the applications to which it's put. Looking back over the history of its use, what might we deem the "national security" of the United States to be, solely from the subjects to which it's been applied?

My first observation in this regard is that the sitting president is the de facto authority on the matter. In practice, if the president says that such-and-such is "a matter of national security," then it is -- whether the proclamation comes before or after the fact. Therefore, one cannot be sure one has not trespassed into a "national security" matter even long after the fact, for the president's unprecedented ex post facto power over such things is unbounded and has no time limit.

My second observation, which descends from the first, is that the use of the Act's criminalization provisions:

    (c)Whoever, in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, discloses any information that identifies an individual as a covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual’s classified intelligence relationship to the United States, shall be fined under title 18, United States Code, or imprisoned not more than three years, or both.
    (d) A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment.

[Sections 601 (c), (d)] thus wholly at the discretion of the sitting president, and therefore an offense not defined in statute law.

A sitting president can criminalize an act as a threat to the "national security" many years after the event.
A sitting president can reverse the decisions of a previous president about threats to the "national security."
The only defense that can be mounted against such a charge:

It is a defense to a prosecution under section 601 that before the commission of the offense with which the defendant is charged, the United States had publicly acknowledged or revealed the intelligence relationship to the United States of the individual the disclosure of whose intelligence relationship to the United States is the basis for the prosecution. [Section 602 (a)]

...requires the cooperation of the prosecuting entity.

Still think you know what "national security" means?

When the Valerie Plame matter broke on the nation's headlines, opponents of the Bush Administration (i.e., the "disloyal opposition") demanded a witch hunt for the person who had revealed Plame's employment by the CIA. At the time, there was much confusion about whether Plame's status at the CIA was "covert" -- a qualifier normally belonging to field agents -- or whether she was merely one more Washington desk jockey. But the National Security Act made no distinctions between the two, so the revelation was within the scope of Section 601 (c).

It wasn't hard to find the leak: it was Deputy Secretary of State Richard Armitage, who had disclosed Plame's employment to columnist Robert Novak. But the persons propelling the witch hunt were unsatisfied with that target. They wanted a sacrificial animal more directly connected to the persons they most hated, President George W. Bush and Vice-President Dick Cheney...and they found one in Cheney's chief of staff, Lewis "Scooter" Libby.

The nature of Libby's "offense," inasmuch as he was provably not the leaker, remains obscure to this day. He was convicted on exceedingly tremulous grounds for "perjury," "obstruction of justice," and "making false statements to federal investigators." But the connection of the Plame case to "national security" made it impossible for President Bush to rescue him from what was plainly a politically oriented prosecution: the matter had been too luridly publicized, and Bush was too ethical a man to dismiss the verdict of a federal jury when the facts of the matter were honestly quite disputable.

More recently, President Barack Hussein Obama has used "national security" to deny various materials to Congressional investigators, as in the recent "Operation Fast and Furious" centered contempt hearings against Attorney-General Eric Holder. Indeed, "national security" is the overwhelmingly dominant excuse for refusing to disclose material of all sorts, whether to Congress or to requestors under the Freedom Of Information Act. When released documents are so heavily redacted as to be effectively blank, the reason provided for the excisions is nearly always "national security."

Obama and his henchmen might be the most egregious such manipulators of the fell phrase, but they're not the first. Presidents have wielded "national security" as a shield for their minions in cases reaching all the way back to the Act's passage. The clash between the de facto meaning of "national security" and the misty image of it in the common citizen's mind could not be more stark.

The "national security" shibboleth has been used, in the preponderance of cases, for one of two reasons:

  • Political persecution, as in the Libby affair;
  • The protection of persons within the federal government from exposure of their malefactions.

Concerning objective abridgements of the "national security," such as the disclosure of sensitive weapons and weapons-related technology to enemy regimes, seldom is anything done. We have the occasional conspicuous violator whom the Administration cannot ignore, such as Jonathan Pollard or Bradley Manning, but these are far fewer than the venal uses of "national security" to shield federal officials from the consequences of their actions. Even with the conspicuous violators -- consider Jesse Jackson's and former president Jimmy Carter's representations that they could negotiate with enemy regimes on behalf the United States! -- there's no guarantee that any common conception of justice will be served.

Bluntly, if you read "national security" as having any objective meaning upon which common citizens can expect the federal government to act consistently and reliably, you've been sold a bill of goods.


Malcolm Hays said...

So, at what point do we transition from "National Security" to "For the Good of the State"?

A single large event--or, more likely, an ever escalating series of small events--I think, could easily sweep away any lingering shreds of governmental attempts to perform the duties of government with respect to "national security" and forcing all "citizens" (i.e. serfs/slaves) to behave in accordance with governmental edicts "for the good of the State".

FrankC said...

Fixed it for you.
"For the Good of the (present) Government"