This article is written by Abeer Rakesh Wasnik of Maharashtra National Law University Nagpur
ABSTRACT
This research paper explores the functioning of the national security laws in the United States, the paper delves into the National Security Act of 1947, which established critical institutions such as the Department of Defence, the Central Intelligence Agency, and the National Security Council. It also investigates the USA PATRIOT Act and its impact on surveillance, intelligence sharing, and counterterrorism measures. The Foreign Intelligence Surveillance Act is examined to understand the legal framework governing surveillance activities targeting foreign powers or agents within the United States. The paper further explores other significant laws, including the Espionage Act of 1917, the Intelligence Reform and Terrorism Prevention Act of 2004, and the Cybersecurity Information Sharing Act, elucidating their respective roles in bolstering national security. By comprehensively examining these national security laws, this research paper provides a valuable understanding of how the legal apparatus operates in the United States to address national security concerns, protect against threats, and maintain the overall well-being of the nation and its citizens.
Keywords: National Security Act of 1947, Central Intelligence Agency, USA PATRIOT Act, Foreign Intelligence Surveillance Act, Surveillance activities, Espionage Act of 1917, Intelligence Reform and Terrorism Prevention Act of 2004, Cybersecurity Information Sharing Act, Bolstering national security, Legal apparatus.
INTRODUCTION
The national security laws of the United States form a critical framework that guides the country’s efforts to protect its interests, citizens, and maintain overall security. Understanding how these laws work is essential in comprehending the mechanisms and processes involved in safeguarding the nation from various threats. This research paper aims to explore and analyse the functioning of the national security laws in the United States. By examining key statutes, regulations, and executive orders, this study seeks to provide insights into the operational aspects and implementation of these laws. The National Security Act of 1947 serves as a foundation for understanding the organizational structure of national security operations in the United States. This legislation established significant institutions such as the Department of Defence, the Central Intelligence Agency (CIA), and the National Security Council (NSC), which play crucial roles in coordinating and executing national security policies.
The paper will delve into prominent laws like the USA PATRIOT Act, which expanded surveillance powers and counterterrorism measures in response to the 9/11 attacks. Understanding the implications of this act is crucial in balancing national security concerns with civil liberties. The Foreign Intelligence Surveillance Act (FISA) will be examined to shed light on the legal framework governing surveillance activities targeting foreign powers or agents within the United States. By comprehensively examining these national security laws, this research paper aims to provide a deeper understanding of how the legal apparatus operates in the United States to protect national security interests, mitigate threats, and ensure the overall well-being of the nation and its citizens.
OBJECTIVES
1. To analyse the legal framework of national security laws in the United States and provide a comprehensive understanding of their structure, scope, and application.
2. To explore the functioning and operational aspects of significant national security laws, such as the National Security Act of 1947, the USA PATRIOT Act, the Foreign Intelligence Surveillance Act, and other relevant legislation.
3. To investigate the institutional mechanisms and roles of critical agencies, such as the Department of Defence, the Central Intelligence Agency, and the National Security Council, in implementing and enforcing national security laws.
4. To assess the effectiveness of national security laws in addressing emerging threats and challenges faced by the United States in the contemporary security landscape.
5. To contribute to the academic and policy discourse surrounding national security laws in the United States and provide a valuable resource for scholars, policymakers, and practitioners in the field.
ANALYSIS
The National Security Act of 1947
Signed into law by President Harry S. Truman on July 26, 1947, is a landmark legislation that significantly restructured the national security apparatus of the United States. The Act was a response to the lessons learned from World War II and the need to establish a more coordinated and efficient defence and intelligence infrastructure. The Act had several key provisions that reshaped the national security landscape. It created the Department of Defence (DoD), consolidating the various military branches (Army, Navy, and Air Force) under a unified command structure. The establishment of the DoD aimed to enhance coordination, streamline operations, and improve the overall effectiveness of the military.[1]
Another important aspect of the National Security Act was the creation of the Central Intelligence Agency (CIA). The CIA was tasked with collecting and analysing intelligence information, conducting covert operations, and providing intelligence support to policymakers. It became the primary civilian intelligence agency, working alongside military intelligence agencies to ensure a comprehensive approach to national security. The Act also established the National Security Council (NSC) as the principal advisory body to the President on matters of national security. The NSC facilitates interagency coordination, policy formulation, and decision-making, ensuring a unified approach to addressing national security challenges.[2]
The National Security Act created the National Security Resources Board (later renamed the National Security Council Planning Board) to coordinate national security planning and ensure the availability of essential resources for defence and security purposes. It laid the foundation for a comprehensive and integrated national security framework in the United States. It established key institutions and mechanisms that continue to play crucial roles in safeguarding national interests, protecting citizens, and maintaining security in the modern era
The USA PATRIOT Act
The United States Congress approved a key piece of legislation in reaction to the 9/11 terrorist attacks, which is formally known as the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. President George W. Bush on October 26, 2001 then ratified it into law. The Act aimed to enhance the government’s ability to prevent and investigate terrorist activities by expanding the powers of law enforcement and intelligence agencies. The Act granted broader surveillance authorities, allowing intelligence agencies to collect information and monitor communications more extensively. It also facilitated increased information sharing and cooperation between different agencies, breaking down some of the barriers that previously hindered the exchange of crucial intelligence.[3]
The Act also introduced measures to counter money laundering and financing of terrorism, including strengthening regulations on financial institutions and expanding investigative powers to track and disrupt illicit financial transactions. However, the USA PATRIOT Act has been subject to criticism and scrutiny due to concerns about potential infringement upon civil liberties and privacy rights. Critics argue that the Act’s provisions, such as the authorization of roving wiretaps and the collection of business records, have the potential for abuse and the erosion of individual privacy. Over the years, the Act has undergone amendments and revisions, with some provisions expiring or being modified. The USA PATRIOT Act continues to be a subject of debate and discussion, balancing the need for robust national security measures with the preservation of civil liberties in an evolving security landscape.[4]
The Foreign Intelligence Surveillance Act (FISA)
It is a United States federal law that governs the surveillance and collection of intelligence information for foreign intelligence and counterintelligence purposes. Enacted in 1978, FISA establishes procedures for the physical and electronic surveillance, as well as the collection of foreign intelligence information, by U.S. intelligence agencies. FISA provides a legal framework for obtaining warrants from the Foreign Intelligence Surveillance Court (FISC) to conduct surveillance on individuals suspected of being agents of foreign powers, including foreign governments and terrorist organizations. The FISC is a secret court composed of federal judges who review and authorize surveillance requests.[5]
Under FISA, intelligence agencies such as the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI) can seek authorization for surveillance activities, including wiretapping, monitoring electronic communications, and accessing business records. It allows surveillance of both U.S. citizens and non-U.S. persons located within or outside the United States, as long as the primary purpose is to gather foreign intelligence information. FISA establishes a heightened standard for obtaining warrants compared to regular criminal investigations. The FISC must be convinced by intelligence services that there is reason to suspect the target of monitoring is a foreign power or an agent of a foreign power. The process is generally conducted in secret, and the targets of surveillance may not be notified about the surveillance unless it is deemed necessary for national security purposes.
It has been subject to debate and controversy, particularly regarding the potential infringement on civil liberties and privacy rights. Critics argue that the law’s secrecy provisions and the broad scope of surveillance powers granted to intelligence agencies can result in potential abuses. In response to concerns, various reforms and amendments have been proposed and implemented over the years to provide additional oversight and accountability in FISA proceedings. It serves as a significant legal framework for intelligence agencies to conduct foreign intelligence surveillance while attempting to balance national security concerns with the protection of civil liberties.[6]
The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA)
It is a United States federal law that aimed to enhance the intelligence community’s effectiveness and improve the country’s counterterrorism efforts in the aftermath of the 9/11 terrorist attacks. Enacted on December 17, 2004, the IRTPA introduced significant reforms to the intelligence community and implemented measures to prevent future acts of terrorism. The IRTPA created the position of the Director of National Intelligence (DNI), who serves as the principal advisor to the President and oversees the entire intelligence community. The DNI’s role is to coordinate intelligence activities, facilitate information sharing among agencies, and ensure effective integration of intelligence efforts to address national security threats. IRTPA established the National Counterterrorism Center (NCTC), which serves as a central hub for analysing and sharing intelligence related to terrorism. The NCTC is responsible for integrating intelligence from various agencies, conducting strategic operational planning, and coordinating counterterrorism efforts across the government.[7]
The IRTPA also addressed the issue of information sharing by promoting the sharing of intelligence among federal, state, local, and tribal agencies. It facilitated the creation of fusion centers, which serve as collaborative platforms for sharing and analysing intelligence at the regional level. The act introduced reforms to enhance border and transportation security, strengthen immigration and visa processes, and improve the screening of individuals entering the United States. It established the position of the Assistant Secretary for Policy within the Department of Homeland Security (DHS), responsible for coordinating and overseeing policies related to border, immigration, and transportation security. The IRTPA played a significant role in reshaping the U.S. intelligence community and strengthening counterterrorism efforts. By establishing the DNI and NCTC, promoting information sharing, and enhancing security measures, the IRTPA aimed to better protect the United States from terrorist threats and improve the coordination and effectiveness of the intelligence community in combating terrorism[8]
The Espionage Act of 1917
It is a law that was enacted during World War I in response to concerns about national security and espionage activities. Passed on June 15, 1917, the act aimed to address the perceived threats posed by spies, saboteurs, and anti-war activists. The Espionage Act made it a federal offense to convey or transmit information with the intent to interfere with U.S. military operations, said the enemy, or promote insubordination, disloyalty, or refusal of duty within the armed forces. The act primarily targeted acts of espionage and the disclosure of sensitive information that could potentially harm national security. The law granted the government broad powers to prosecute individuals suspected of espionage, including journalists, publishers, and whistle-blowers. It provided for severe penalties, including imprisonment and fines, for those found guilty of violating its provisions.[9]
The Espionage Act faced significant criticism for its potential infringement on freedom of speech and press. It led to the suppression of anti-war dissent and the prosecution of individuals who spoke out against the government or criticized U.S. involvement in the war. Notable cases included the convictions of socialists Eugene V. Debs and Charles Schenck for their anti-war activities. It remained in effect since its enactment, and its provisions have been used in subsequent prosecutions related to national security. Over time, courts have grappled with striking a balance between national security interests and protecting First Amendment rights. It continues to be an important and controversial piece of legislation in the United States, shaping the legal framework surrounding issues of national security, espionage, and freedom of speech.[10]
The Cybersecurity Information Sharing Act (CISA)
The law aims to improve cybersecurity by facilitating the sharing of cyber threat information between the government and private entities. Enacted on December 18, 2015, CISA was designed to enhance the country’s ability to detect and respond to cyber threats by promoting collaboration and information sharing. CISA provides legal protections and incentives to encourage private companies, such as those in the private sector, to voluntarily share cybersecurity threat information with the government. It enables the sharing of information related to cyber threats, vulnerabilities, and defensive measures, with the goal of bolstering the overall cybersecurity posture of the nation. Under CISA, private entities can share cyber threat indicators and defensive measures with federal agencies, such as the Department of Homeland Security (DHS), the Federal Bureau of Investigation (FBI), and the National Cybersecurity and Communications Integration Center (NCCIC). In return, these entities receive liability protection, safeguarding them from legal repercussions that may arise from sharing such information.[11]
CISA also promotes the development of information sharing and analysis organizations (ISAOs), which serve as platforms for sharing cybersecurity information within specific sectors or communities. These ISAOs facilitate collaboration among companies, government agencies, and other stakeholders, encouraging the exchange of best practices and threat intelligence. Critics of CISA have raised concerns about potential privacy implications and the broad sharing of sensitive information with the government. They argue that the law could infringe on individual privacy rights and enable government surveillance. Proponents, on the other hand, assert that the law is crucial for improving cybersecurity and fostering public-private cooperation. The act provides a legal framework to encourage information sharing and collaboration between the public and private sectors to enhance cybersecurity defences and respond effectively to cyber threats.[12]
The Homeland Security Act of 2002
The law was enacted in response to the 9/11 terrorist attacks. Signed into law on November 25, 2002, the act aimed to establish the Department of Homeland Security (DHS) and improve the country’s ability to prevent, prepare for, and respond to domestic terrorist threats and other emergencies. The Homeland Security Act brought together various federal agencies and departments, consolidating them under the newly created DHS. It merged 22 existing agencies, including the Immigration and Naturalization Service, the U.S. Coast Guard, the Federal Emergency Management Agency (FEMA), and the Transportation Security Administration (TSA), among others. The DHS is responsible for coordinating and implementing national security efforts, including protecting the country’s critical infrastructure, securing borders and transportation systems, responding to natural disasters and emergencies, and combating terrorism. The act provided the DHS with broad authority to address various aspects of national security and public safety.[13]
The Homeland Security Act also established the Information Analysis and Infrastructure Protection (IAIP) division within the DHS. This division is tasked with analysing intelligence information, assessing vulnerabilities, and coordinating efforts to protect critical infrastructure sectors. The act also created the position of the Secretary of Homeland Security, who serves as the head of the DHS and advises the President on matters related to national security. The Secretary oversees the operations of the various agencies within the department and works to ensure effective coordination and collaboration among them. The act aimed to enhance the nation’s security by centralizing and streamlining efforts to protect the country from terrorist threats and other emergencies. The DHS plays a crucial role in safeguarding the United States and its citizens, and the act continues to shape the framework for homeland security and emergency response efforts.[14]
CONCLUSION
This research paper has examined the national security laws of the United States and their operational mechanisms. Through a comprehensive analysis, we have gained insight into the legal framework that underpins the nation’s efforts to protect its security interests. The United States has developed an intricate system of laws and regulations to address national security concerns, encompassing both domestic and international dimensions. These laws provide mechanisms for intelligence gathering, surveillance, information sharing, and counterterrorism efforts. They establish oversight and accountability mechanisms to strike a balance between safeguarding national security and protecting civil liberties.
However, it is important to note that the implementation and interpretation of these laws are subject to ongoing debates and legal challenges. Balancing national security imperatives with the protection of civil liberties remains a delicate and evolving task for the United States. Understanding the national security laws of the United States provides valuable insights into the nation’s commitment to protecting its citizens, infrastructure, and interests. Further research and analysis will undoubtedly continue to shed light on the effectiveness, implications, and evolving nature of these laws in an ever-changing security landscape.
[1],”National Security Act”, Encyclopedia Britannica, https://www.britannica.com/topic/National-Security-Act, Accessed 2 June 2023.
[2] “National Security Act of 1947”. (July 26, 1947, ch. 343, SS1, 61 Stat. 495. Accessed 2 June 2023
[3] Paul T. Jaeger, Charles R. McClure, John Carlo Bertot and John T. Snead “The USA PATRIOT Act, the Foreign Intelligence Surveillance Act, and Information Policy Research in Libraries: Issues, Impacts, and Questions for Libraries and Researchers.” vol. 74, no. 2, 2004, pp. 99–121 The Library Quarterly: Information, Community, Policy, JSTOR, https://doi.org/10.1086/382843. Accessed 2 June 2023.
[4] Kam C. Wong, “The USA Patriot Act: A Policy of Alienation” 2006, https://heinonline.org/HOL/P?h=hein.journals/mjrl12&i=169, Accessed 2 June 2023.
[5] Boykin, Scott, “The Foreign Intelligence Surveillance Act and the Separation of Powers” (April 15, 2015). University of Arkansas at Little Rock Law Review, Vol. 38, No. 1, Social Science Research Network available at SSRN: https://ssrn.com/abstract=3827313 , Accessed 2 June 2023.
[6] United States. Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 or FISA Amendments Act of 2008. [Bethesda, MD: ProQuest], 2011. Accessed 3 June 2023
[7] Malekos Smith, Jessica Zhanna, “A Catalyst for Enhancing Intelligence Analysis: The Intelligence Reform and Terrorism Prevention Act of 2004” (February 24, 2018), Volume 21, Issue 1 (2018), Gonzaga Journal of International Law, Available at SSRN: https://ssrn.com/abstract=3133504 Accessed 3 June 2023
[8] Ositadinma Chukwuemeka Alozie, “Information sharing:-the impact of the intelligence reform and terrorism prevention act of 2004 on U.S national security” Vol. 11, Issue, 02, pp.1417-1425, February, 2019, INTERNATIONAL JOURNAL OF CURRENT RESEARCH, http://www.journalcra.com/sites/default/files/issue-pdf/33912.pdf, Accessed 3 June 2023
[9] Larsen, Daniel, before “National Security”: The Espionage Act of 1917 and the Concept of “National Defense” (2021). 12/2, pp. 329-372, Harvard National Security Journal, Available at SSRN: https://ssrn.com/abstract=3884344, Accessed 3 June 2023
[10] DeWitt, Petra. (2016). “Clear and Present Danger” The Legacy of the 1917 Espionage Act in the United States. Historical Reflections. 42. 115-133. 10.3167/hrrh.2016.420207. Accessed 4 June 2023
[11] CISA: A good start, but challenges remain on security information sharing, techbeacon, https://techbeacon.com/security/cisa-good-start-challenges-remain-security-information-sharing. Accessed 4 June 2023
[12] The Cybersecurity Information Sharing Act (CISA), jsiswashington, https://jsis.washington.edu/news/the-cybersecurity-information-sharing-act-cisa/, Accessed 5 June 2023
[13] Harold C. Relyea, “Homeland security and information sharing: Federal policy considerations”, Government Information Quarterly, Volume 21, Issue 4, 2004, Pages 420-438, ISSN 0740-624X, Government information quarterly, https://doi.org/10.1016/j.giq.2004.08.007. Accessed 5 June 2023
[14] Cohen, Dara Kay, et al. “Crisis Bureaucracy: Homeland Security and the Political Design of Legal Mandates.” Stanford Law Review, vol. 59, no. 3, 2006, pp. 673–759. JSTOR, http://www.jstor.org/stable/40040307. Accessed 6 June 2023. Accessed 4 June 2023
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