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STUDY GROUP LED BY IOP FELLOW BRETT MCGURK

Watch Brett McGurk's study group introduction

Background: The Supreme Court and the National Security Council have left an imprint on American posture and engagement with the world since 9/11.  The National Security Council in its traditional way – through its designated function as the hub of national security policy making; and the Supreme Court in a surprising way – with increasing confidence and prominence in shaping foreign and national security policy through legal interpretation.

The role of these institutions since 9/11 demonstrates that while institutions and leadership within them can shape America’s response to great events, such events themselves can shape and change institutions – and redefine their roles in our democracy.  This Study Group will consider the roles of these two institutions in wartime, from the perspective of individuals personally involved in events that have shaped our history over the past eight years.     

Part I.  The National Security Council is the central hub of U.S. foreign policy making and execution.  As the institution that advises the President daily on national security affairs and oversees the development and execution of foreign policy across departments and agencies (State, Defense, Treasury, CIA) its proper functioning in wartime is vital to defining and securing our national interests.

The wars in Iraq and Afghanistan have tested and stressed the NSC.  But they have also proved its fundamental value in the development and coordination of foreign policy.  Both conflicts have required an unprecedented fusion of military and civilian resources and constant adaptation to changing circumstances.  The decision to radically change U.S. strategy in Iraq with the “surge” was a decision led by the NSC’s three-month strategic review in the summer and fall of 2006; the negotiation of historic accords with the Iraqi government, charting the withdrawal of U.S. forces and forging a long-term strategic relationship, were also directed, ultimately, by the NSC with regular participation by President Bush.

The NSC in 2007 also underwent a historic reform with the introduction of a “War Czar” (LTG Doug Lute) to report directly to President Bush and oversee U.S. policy on Iraq and Afghanistan.  From January 2007 to the end of his term, President Bush also chaired weekly NSC meetings on Iraq – with direct reports via secure video from General Petraeus and Ambassador Crocker – in addition to regular video conferences with President Karzai and Prime Minister Maliki, both unprecedented examples of NSC policy oversight in wartime.  President Obama has retained the model of a muscular NSC, which led strategic reviews of Iraq and Afghanistan war policy in the early months of his administration. 

Part II.  The Supreme Court in recent years has weighed into debates between the branches to define rules governing the definition of “enemy combatants” and the scope of habeas corpus in wartime.  Its rulings in Hamdan v. Rumsfeld (2006) and Boumediene v. Bush (2008) will require the new administration, lower federal courts, and the Congress, to navigate through competing interpretations and new limitations on the scope of executive authority.  The Court has also grappled with the intersection of international and U.S. domestic law.  In the months after 9/11 – and for the first time in its history – the Court looked to foreign precedent to interpret the U.S. Constitution (Atkins v. Virginia (2002)).  In its 2007 Term, by contrast, the Court flatly rejected an argument that the Vienna Convention could override or enhance the requirements of U.S. domestic law.

There is a serious debate both on the Supreme Court and outside about whether the Court plays a proper role as constitution guardian in deciding cases like Hamdan and Boumediene – or whether it inserts itself into national security matters that require acute flexibility and pragmatism, which elected branches should provide.  Similarly, there are sharp divisions on whether the Court should be concerned with international precedent – and the message its decisions send to the world – in deciding questioned presented under U.S. law and the U.S. Constitution.  This Study Group will consider these questions, as well as examining how the Court actually decides these most difficult and groundbreaking cases.

Sessions: As leader of this Study Group, I have personal experience with both of these important institutions – having served as a law clerk to Chief Justice William H. Rehnquist during the events of 9/11 and then as Special Assistant to the President and Senior Director for Iraq and Afghanistan at the NSC.  My role on the NSC included the development of the surge strategy in Iraq and negotiation of the Security and Strategic Framework Agreements with the Iraqi Government.  I also served for the first nine months of the Obama administration, as a special advisor on the NSC and then as Senior Advisor to the U.S. Ambassador in Iraq.

Guest speakers will include the direct participants in decisions that have shaped American posture and engagement with the world since 9/11, including National Security Advisor Steve Hadley, Ambassador Ryan Crocker, Lieutenant General Doug Lute (the “War Czar”), and Supreme Court insiders.  The goal of the Study Group is to hear from these participants how decisions were made; how policy makers (and even justices) face a set of imperfect choices with limited information; and how institutions both respond to and are shaped by historic events.  Participants should come away with a sense of what it feels like to make history. 

Session 1.  Introduction.  I will introduce the course and the upcoming sessions, focusing on my own experience working in the White House, on the Supreme Court, and in Baghdad (from where I will have just returned).  The session will also introduce a larger question for consideration as the study group proceeds: 
Can the Supreme Court (through a legal foundation) and the NSC (through a policy foundation) set an enduring construct for U.S. engagement in the world?  Just as the U.S. Supreme Court and successive administrations in the 1950s and 1960s established an integrated legal and policy construct for desegregation, and transformed civil rights into a national imperative, might the Court and a new administration set a new narrative of U.S. engagement in the world, predicated on (1) embracing international precedent and (2) harnessing all aspects of national power (including the U.S. Constitution, perhaps our greatest instrument of soft power) to protect vital U.S. interests, strengthen our security at home, and buttress our position abroad?  This session will consider how this might be done.

Session 2.  The NSC Since 9/11 – Steve Hadley.  Steve Hadley served on the NSC for all eight years of the Bush presidency – first as Deputy National Security Advisor and then as National Security Advisor.  This session will discuss the proper role of the NSC in foreign policy making and execution and how this role changed on and after 9/11.  Steve will discuss his relationship with the President and his role as National Security Advisor – facilitating national security policy and ensuring the rest of the government is working towards a common goal.  The session will also preview the topics to be discussed over the next four weeks, including the Iraq strategy review and changes to the NSC designed to implement the new strategy, including the introduction of a “War Czar” and direct weekly videoconference reports from the field to the President. 

Session 3.  The NSC and Institutional Change – Doug Lute.  The NSC in 2007 underwent historic changes designed to facilitate effective implementation of the surge and to respond rapidly to changing events in Iraq and Afghanistan.  A new Assistant to the President position was added, with LTG Doug Lute appointed to report directly to the President and oversee U.S. policy in both theaters.  Formal NSC meetings with the President and his Principals took place every week on Iraq and every other week on Afghanistan – often followed by video conferences with Prime Minister Maliki and President Karzai.  Doug will discuss the benefits and drawbacks of these reforms – and how the Obama administration has adapted the model to its own policy priorities.  He presently oversees U.S. policy on Afghanistan and Pakistan for President Obama. 

Session 4.  The NSC Viewed from the Front Line – Ambassador Crocker.  This session will consider the unprecedented role of the NSC – with regular direct interaction between a front line Ambassador and Commanding General with the President in 2007 and 2008 – from the vantage point of the field.  Guest Speaker Ambassador Ryan Crocker oversaw the civilian component of the surge, and with General Petraeus successfully implemented a counterinsurgency model based on fusion of civilian and military resources, and coordination of political, economic, and military measures throughout the theater.  He will discuss his experience in Baghdad and how regular direct interaction with the President and his top advisors helped facilitate coordination of the interagency.

Session 5.  The NSC, the Surge, and the SOFA – David Satterfield and Meghan O’Sullivan.  Development and implementation of the surge strategy was formally organized and coordinated from the NSC beginning in the fall of 2006.  But its roots are deeper – and the ultimate decision was based on work collected and analyzed from the NSC (working with CIA and other agencies) throughout 2006, during the rise of sectarian violence following the February 2006 Samarra mosque bombing.  Meghan and David were the lead NSC and State Department participants in this process.  David and I then led the overall negotiation of a Security Agreement with Iraq, which is now the cornerstone of U.S. policy there.  This session will bring the old team back together to discuss a common experience from different vantage points, and lessons learned.

Part II – The U.S. Supreme Court

Session 6.  The Supreme Court on 9/11.  This session will focus on the impact of 9/11 on the Supreme Court as an institution.  I was there on 9/11 and we knew immediately that the Court would be asked to weigh in on how our country would change, for better and worse, checking excesses while also providing the executive with powers it needs to act effectively and decisively.  Guest Speakers will include other law clerks from this important Term.

Session 7.  International Law and U.S. Reputation.  Should foreign law and precedent be used to decide cases under U.S. law – and the U.S. Constitution?  The bookends for discussion are two death penalty cases, one decided during the 9/11 Term (Atkins) and one decided in the Court’s 2007 Term (Medellin).  The decision on how to treat international law and precedent is very much a policy decision, and dependent on how one views the proper role of the Court in matters that impact foreign affairs.  How have events since 9/11 redefined the Court’s proper role in these areas?  Guest speakers will include participants in these cases as well as Prof. Noah Feldman for a broader perspective. 

Session 8.  The Guantanamo Cases.  The Court through the Guantanamo Bay cases – Hamdan and Boumediene – has played a direct role in an international controversy while also asserting its paramount role in our democracy on issues once left for the political branches.  In ruling that the U.S. Constitution and the Geneva Convention reach non-citizens held in Guantanamo, the majority based its decision on a robust interpretation of international law and the Court’s role in our constitutional system – effectively ruling that the President and the Congress sought authority to “govern without legal constraint.”  The Court’s dissenters in turn accused the majority of establishing a rule that “will almost certainly cause more Americans to be killed.”  This session will hear from participants on both sides – including attorneys involved in the Supreme Court litigation. 

Session 9.  The View from the Bench – [Special Guest Speaker TBD].  The special guest speaker will discuss the impact of 9/11 on the Court and the impact of the Court’s decisions on America’s reputation in the world, as well as the Court’s proper constitutional role in choosing to decide cases that directly impact the conduct of foreign affairs and national security.