The practical consequence of the Constitutional Court’s balancing approach to maintain both security and liberty has been a shifting jurisprudence, a fact that is bound to buoy and bother American conservatives and progressives in equal measure. There is something in the Court’s cases for both camps. Before 9/11, the Court deferred to the legislature’s attempts at promoting security. This inclination, however, changed dramatically in the post-9/11 period. In a string of cases the Court has consistently invalidated national security legislation for failing to adequately take account of constitutionally protected liberty interests.
I am proud to be asked by the Journal of National Security Law & Policy to introduce this important and impressive issue. The timing could not be more critical. The nation is in the middle of a significant debate – how important is cybersecurity among the many security vulnerabilities competing for scarce resources? This is precisely the sort of consequential topic regularly addressed by this journal, which was created on a volunteer basis as a direct reaction to the September 11 attacks on the United States. My compliments to the Journal for providing incisive commentary by and for public officials and academics alike.
A cornerstone of our twenty-first century economy is the ability to employ computers to transact business, operate infrastructure, and manage our personal affairs. We often take for granted how much of our daily lives depends upon the efficient operation of our computers and their ability to communicate across vast and varied networks. Not just mobile phones, email, and online shopping rely on cyberspace, but also electricity and the businesses that facilitate our daily living like grocery stores and trash pickup. This dependence on cyberspace means that it must be reliable and resilient – in other words, secure from failure, compromise, data manipulation, or theft.
Of course, cybersecurity is only one aspect of national and homeland security. We are fighting against Taliban insurgents in Afghanistan, hardening the transportation system, and investing unprecedented resources in securing our national border. We undertook a massive immunization effort across our country’s school systems to address H1N1 influenza. How do we assign a relative value to cybersecurity among this list of priorities? And once we determine the relative values, how do we take action to secure cyberspace? These matters are just beginning to be opened to robust debate. And that debate must take place within a common framework of analysis…
As the United States continues to fight on multiple fronts to disrupt the efforts of al Qaeda and its affiliates, the U.S. government has slowly come to realize that military force alone cannot defeat radical Islamist extremism (hereafter “radical extremism”). Today, there is a growing consensus that countering the ideology that drives this extremism is a critical element in the overall effort to prevent extremist acts of violence. Despite this greater realization, developing a precise strategy to counter extremism effectively and empower mainstream alternatives has proved challenging. This issue posed a difficult challenge to the Bush administration and remains a daunting and urgent task for the Obama administration.
By any measure, the period between September 11, 2001, and the 2008 presidential election witnessed an unprecedented tangle of controversies at the intersection of national security law and policy. The Bush administration responded to the September 11 attacks and the threat of further terrorism by asserting expansive executive authority across a wide range of national security domains. The President fashioned new rules for detaining those captured in what was called the “global war on terror” …
The opening phrase in Charles Dickens’s Tale of Two Cities nicely captures the national security challenges confronting the nation as a new administration takes office. After the stunning failures of the preceding Administration, Obama’s inauguration in November 2008 was greeted with euphoria. Obama’s bearing, approach and outlook seemed to offer a “just in time” rescue for national security policies run aground. Now, as the day-to- day reality of governing sets in, it is increasingly clear that the nation will need every bit of the new President’s heralded thoughtfulness and calm. Obama seems an excellent example of Ernest Hemingway’s definition of courage as “grace under pressure.” Even without considering the economic debacle confronting the world and its impact on global markets, the national security concerns confronting the United States as the world’s leading power are daunting.