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International Legal Procedure vs. US National Security Strategy

By Kerry Givens

The 2008 U.S National Security Strategy outlines the U.S objective to strengthen alliances and build new partnerships to defeat global terrorism and prevent attacks against us, our allies, and our friends; prevent our enemies from threatening us, our allies, and our friends with weapons of mass destruction (WMD); work with others to defuse regional conflicts, including conflict intervention; and transform national security institutions to face the challenges of the 21st century(2008 National Defense Strategy). There has been great controversy in the arena of public opinion as well in most legal circles as to legality of improvised techniques used to accomplish this objective.

Due to U.S dominance in convention warfare has given non state adversaries (terrorists) and their state sponsors (rogue nations) the necessity to adopt asymmetric techniques to counter or neutralize our advantages. For this, the DOD has decided to implement irregular warfare techniques that augment conventional combat methods. U.S threats also seek to equal the level warfare capability by developing or obtaining chemical, biological, and especially nuclear weapons as well as cyber techniques that can disrupt US warfare dominance. The 2008 NSS outlines the development and proliferation of anti-access technology and weapon systems capacity  to restrict our future freedom of action in various theaters. These challenges could come not only in the obvious forms we see today but also in less traditional forms of influence such as manipulating global opinion using mass communications venues and exploiting international commitments and legal avenues.

Public opinion has swayed over recent years due to scandals of rendition and tutor and the Abu Graib photographs which call into whether or not International Law or U.S. law has been broken. This affects how the U.S. and its allies conduct integrations and trials. There has been political firestorms as to the detainment and nature of military tribunals and if the detains are protected under the U.S. Constitution.

There are also quarrels over, if convicted, where detainees will be housed to serve their terms. Probably the most troubling of all is that this places the burden on our national security agencies to determine the criminal liability of their officers and operatives actions as well as lawmakers who authorize such operations.

Article 2, Section 1 of the UN Charter states that “The Organization is based on the principle of the sovereign equality of all its Members.” Section 3 states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United nations.”  Once warfare has commenced can our warriors be held criminally liable for operations conducted under the command of the President? Can information gathered be legally used in court and what methods are legal in the U.S. to obtain information? How does this affect the 2009 National Security Strategy and future strategies in the future? My theory is that intelligence officers and national security agencies are covered by precedence going back more than 50 years and that both officers and their agencies have viable defenses if ever should the need for one arise.


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