Another disturbing diffusion and distortion of ‘national security’ threat rhetoric

Do we want the energies of America’s ‘national security’ enterprise to focus on the increasing dangers from foreign state and non-state adversaries, or do we want it to concentrate on criminality traditionally the province of law enforcement entities? 

If the latter, have we fully considered the implications of doing so?  Could the overuse of ‘national security’ threat rhetoric lead to unintended yet perilous consequences?

Recently on Lawfire^® I warned against transforming every societal ill – even serious ones – into a ‘national security’ threat (“If everything is a ‘national security’ priority, nothing will be”).    Nevertheless, the trend is continuing with yet another set of actors becoming ‘national security’ targets.

Context

When the Administration named “climate change” as our  “biggest threat to national security,” and the President made it the  “center” of his national security policy, I asked “Could hyping climate change with warlike rhetoric spur military conflict with China or Russia?”

Last week, however, it seems the Administration may have already found a new nucleus for America’s national security. 

It declared “countering corruption as a core United States national security interest” and, of course, the media quickly reported that “[a]nalysts hailed the memo’s designation of corruption as a national security threat.”

Let’s unpack this a bit, starting with this question: if “climate change” is at the “center” of U.S. national security, but corruption is at the “core,” which one gets the priority?  More specifically, where do China, Russia, Iran, North Korea, ISIS, al-Qaeda, and the Taliban sit on the revised priority spectrum?  How about cyber attacks? 

Allow me make this as clear as I can: if everything (and everyone) that presents a serious societal challenge is captioned as a “national security threat” and placed at the “center” or “core” of our national security policy, nothing will be the priority, and an inevitable diffusion of focus and a distortion of resourcing will follow.

Of course, corruption is a very serious problem around the globe, but it is essentially a major law enforcement challenge to be addressed by cops and the courts.  It should be governed by human rights law, to include due process, the presumption of innocence, the use of force only as a last resort, and much more.

The dangers

National security threats imply national security solutions which can at times be governed not by human rights law, but rather by the law of war as a lex specialis.

For example, under the law of war, force can be the first recourse; there is typically no requirement to seek the capture of belligerents (as opposed to accept their surrender); prisoners who are seized can be held without trial until the end of the ‘conflict’; and there are times that mere membership in a hostile organization can be enough to launch a missile at someone.

To be sure, before the law of war should be applied, a ‘war’ or ‘armed conflict’ should exist.  However, once law of war references proliferate (how long will it be before we hear about a “war on corruption”?) methodologies reserved for traditional national security threats can insinuate themselves into criminal law processes where they don’t belong – even if the law of war doesn’t strictly apply.

A risk to civil liberties?

“National security,” even without an animating armed conflict, can nevertheless lead to curtailments of civil liberties otherwise enjoyed by Americans.

Consider: because of the paramount importance of national security to the country’s survival, the courts have usually given deference to the government on national security.  In Haig v. Agee the Supreme Court acknowledged that “[i]t is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”

This has led to concessions related to civil liberties,  For example, there has long been concerned that special powers afforded the government to counter national security threats would migrate into ordinary criminal cases. 

It is especially a concern given the powers afforded the government under the Foreign Intelligence Surveillance Act (FISA) which, among other things, allows surveillance activities under circumstances which would be permitted in even an extremely serious criminal investigation.

However, reports are increasing that indicate such a migration is occurring.  Last year, for example, the Associated Press reported (“How national security surveillance nabs more than spies”) on several cases where evidence gained in a FISA warrant could still be lawfully used in prosecuting ordinary criminal cases.

Additionally, the deference the judiciary has historically accorded government fact-finding and other activities in national security cases may erode if what is essentially a traditional criminal matter is somehow morphed into a “national security” case.  That customary deference can be vital in certain cases where authentic national security issues are involved, but can be diminished or even lost if the courts become convinced that the appellation is being inappropriately overused.

The future?

Is it really so hard to imagine, given the President’s “national security” declaration, that national security powers intended to guard against foreign threats would be turned internally against those accused of domestic corruption — even where the allegations of criminal behavior do not directly implicate that nation’s security any more than any other kind serious criminal activity?   Is “corruption” more of danger to Americans that opioid-related crime since the drug kills nearly 50,000 people a year? 

Indeed, should we declare not just “corruption “suspects, but all those accused of serious criminal conduct as “national security” threats and use national security methodologies to deal with them?  Not in my book.

To be clear, it is entirely appropriate the President and his Administration to strongly denounce corruption and to cite its nefarious impact around the world.  Organizing a well-funded and fully-supported international law enforcement task force could make sense.  Moreover, calling upon the Justice Department to crack down on corruption is a perfectly reasonable action.

That said, conflating law enforcement challenges — however serious — with national security threats can not only diffuse focus and resources away from truly existential perils, it can unnecessarily jeopardize civil liberties the national security enterprise exists to protect.

Still, remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!