Transformation of the Modern Liberal State: War, Politics and Rights

Harvey Rishikof
Visiting Professor of Law, National War College; Professor of Law, Rodger
Williams University

March 30, 2004

In this talk I'm going to try to give you a sense of where I'm at in my research.

In the National Security Strategy Department at the War College, we're focusing today on four major issues, which together emphasize transformation. These issues are WMD, terrorism, failed states, and RMA. We're currently reviewing our curriculum to see if we're covering these four elements properly. The overarching question is ‘What should our foreign policy be, and how should our force structure reflect it?’ We currently talk about the “hollow army.” We say that the army is stretched, that it needs more divisions. We say the American way of war is the way of the future. We're a professional army.

In 1947 we created the national security state — the CIA, DOD, NSC, and so forth. What is not talked about as much is the economic structure — GATT and Bretton Woods, and other economic spheres of coalition alliances. McNamara, with his PPBS system, asserted civilian control over the Pentagon in a way that had not been seen before. I posit that right now we're seeing the same thing with this idea called "transformation". The next big event in the evolution of the security state was the 1986 Goldwater-Nichols Act. Its ultimate goal was to put ordinance on target, without respect to traditions about who puts it there. We're more interested in the effect. After that, the end of the Cold War brought on questions as to what is the role of our military. And last, there was 9/11, and we're wondering if this will represent a new inflection point. Inside the Beltway one of the new buzzwords is "Goldwater-Nichols II." Should there be even greater civilian control over the military? The corollary question is the role of the NSC. Should it be operational, or if not, should there be a new civilian organization with an operational role?

Another question I'm dealing with in many of my talks is the Patriot Act. I personally believe that the wall that separated the FBI and CIA was less than most people realized. There was always the ability to get a special court order to kick something over to the FBI. The tension here is that the CIA's job is to prevent things from happening while the FBI prosecutes after the crime has occurred. If the FBI turns into a prevention-type organization, it is "leaning forward," which is an invitation to become much more intrusive. One of the ironies about modern encryption is that as we develop increasingly effective encryption, we can only acquire intelligence or evidence when it is being typed or being read. Therefore the government now has a much greater motivation to get involved on the two ends of the spectrum. Intercepting the transmission is much less relevant. And to a degree, the courts are responsive to this.

So what are the big issues?

• Intelligence — what should be the role of the community? I believe with the results of the 9/11 commission pending, we will have two choices. Either we create an MI-5, or a new DCI who is not running his own organization. MI-5 has only 2000 employees. This would be an entity that sits under the 14 or 15 intelligence agencies and thinks holistically about what are the national security crown jewels. Its agents would have the authority to kick down doors, to talk to anyone in any agency in order to get answers.
  
  
• Prevention versus Pre-emption
  
  
• The role of international law — the Security Council and the World Court. How will they interact? Who vetoes whom?
  
  
• When to intervene — we can bring a lot of hurt on a lot of area extremely quickly. But what about the sovereignty of these states we'd be intervening in? What about working through coalitions, about achieving consensus?

Rapporteur: David Blum

back to seminar schedule, Spring 2004