Study On The Post-War National Security Legal System Of The U.S.

After the Second World War, the United States since 1947 successively promulgated a series of national security laws and regulations such as the National Security Act, institutionalized 16 national security organs including the CIA, as positive responses to the threat of the Cold War, endeavoring to protect national security and position itself as a great world power. By such measures, a relative complete and effective modern national security system is established.Over the years, abundant studies and researches have been conducted on the US legal system from other perspectives but the national security angle. Through those studies and researches, positive results were achieved and useful references were made for the construction of China's legal framework. Nonetheless, there has been little research or study on the national security system of the US. This thesis attempts to fill the blank and systematically analyze various national security laws and regulations comprehensively since the foundation of the US and especially since the Second World War. This thesis concludes the inherent rules and features of the national security system in the US, thus enriches the researches on the national security system in the US.This thesis puts emphasis on the history of national security legislation, the legal function of modern national security intelligence system, its process of advancement, and its supervising mechanism's development and improvement in the US from the Second World War era to 2009.The theoretical value and innovative issues of this thesis are as follows. The first issue is to categories over forty national security laws and regulations by phases and their nature from the perspective of legal history to find the value orientation and arts in tackling the unique legislative hazards during the legislation of national security laws and regulations. The legislative hazards can be found in the conflicts of the required transparency of law and the secrecy of national security task and in the conflicts of the civil rights and the particular power of national security. I discover the techniques and methods that the legislation of national security laws and regulations adopt in appropriately solving and balancing the aforementioned conflicts in the US, which is, the secret national security intelligence task can and must be supervised by law publicly in order to achieve a supplementing and balanced effect of the two issues. The second issue is to look into the development of the modern national security system and the institutional framework in the US in a broad and thorough manner, to analyze the US approach of regulating national security institutions or organs and to observe how the power-holders in the US institutionalize and operate such institutions or organs by means of laws in order to improve and reform such institutional framework and its functions. I find that on the one hand the Intelligence Agencies, a "rogue(trouble-making) elephant", are relied upon to safeguard national security; on the other hand, laws and regulations are invoked to protect the lawful rights of citizens from the possible disturbance from such national security institutions or organs. The legal value tendency is to promote equivalent significance of national security and civil rights. My researches from a legal perspective supplement the general academic studies from the politic, diplomatic or other perspectives. The third issue is to scrutinize the development and advancement of the regulatory framework of national security system, which unveils the supplementing and conflicting history between the US president, the Congress and the Judicial organs. The advantage and disadvantage of the national security framework regarding the check-and-balance system in the US are also detailed and analyzed.This thesis has 330,000 words with 260,000 words as its main body and 60,000 words including the US National Security Act 1947 as an appendix. This thesis divides in six chapters in addition to the introduction. The first chapter summarizes and outlines the legislative history of national security laws and regulations in the US after the Second World War. It first briefly reviews the legislative history during the foundation of the US to the Second World War period, which serves as a basis of further study on the post-war legislative period. The legislative history of national security laws and regulations are discussed in three phases. First, the "Cold war" period, during which a large sum of national security laws and regulations emerged. This thesis categorizes all the legislations during this "peak period", regarding structure, institutional responsibilities, the protection of the secret agent, into nine parts with appraisal respectively. Second, the "Post-Cold War" period, during which the legislative national security system was on its to maturity. Third, the reforms after the "9.11". All those legislations are presented by lists and chats.Chapter two reviewed the post-war US national security legal system, with the first chapter of this thesis together, constitute the first part of the study. Statute, presidential executive order and case law are the main forms of the US national security laws, with statute as the main body and the case law as the supplement. The United States national security legislation is in the pursuit of balanced value orientation, flexibility in the use of legislative technologies, thus maintains the balance between the openness of the law and the covert of the national security activities. On the issue of handling the contradictory relationship between the powers of the security activities and the civil rights, the legislation is properly coordinated and balanced. In specific, the United States defines the boundary between the reveal of national security information and the citizens'right to know in the form of legislation. Besides, the case law helps to coordinates the balance between detection by technologies and the protection of privacy, that is, the right of citizens to freedom of expression should, to some extent, give concession to national security. All those coordination and balance mentioned above carry the spirit of the constitution in a plain manner, while represent the nice complement between the US administrative law and criminal law. Chapter three studies the construction and development of the postwar US national security system. After the war, with all the reforms and improvements, the United States gradually built up a mature decision-making, directing, implementation, consultation and supervision national security system, of which the United States National Security Council played the core role. The study of this council enables the thesis to conjure up the shaping and reforming of the whole US national security system.With study towards 16 members of the intelligence community after the war, chapter four reveals the type,the legal functions and developments of the US national security agencies.On the basis of the previous two chapters of studies, Chapter five looks into the regulations of the postwar national security activities. In accordance with the law, the United States established its postwar national security system, in which the president is the top leader and the Director of National Intelligence has the right to command and coordinate. The postwar US national security laws and regulations provide detailed regulations on a wide range of activities, including the set up, functions, terms of internal management, the relationship with other government departments and enterprises, as well as the rights and obligations of the national security staff. With all those regulations, the national security agencies'right to secret searches, surveillance, technical surveillance power and cover action were authorized by law. In other word, all the intelligence, counter-espionage and other national security activities need to be carried on in a lawful manner while all these activities are also under legal protection.Chapter six discusses the legal supervision of the postwar US national security work, namely the president, the courts and congress on national security oversight. The US national security legislation established the principles of supervision, defined the function of the supervisory authority, provided the rights and obligations of supervision, and made clear the boundaries between the public and covert supervision. Presidents at that time over-sighted the national security work primarily through the promulgation of executive orders and setting up of special investigation committees, that is, the president authorized Rockefeller Commission and Murphy Commission, which played an active over-sighting role. After the war the United States courts of the national security oversight job gone from a conservative to an active process, the relevant jurisprudence of the Court clearly portrayed national security track of the changes in the course of supervision. The Congress acted as the main force of the postwar oversight, by means of legislation, the exercise of budgetary and personnel authority and the specialized surveys into legal supervision of national security. With a thorough study of the Church Commission, the Pike Commission, the Senate Select Committee on Intelligence and the House of Representatives Permanent Select Committee on Intelligence, this thesis tracks the development of the US congress oversight, from a starter to a better-shaped one. A range of reforms the developments have been carried on by the US congress since the 1980s while the contradiction between the "covert" national security activities and the public legal oversight was always on its way. With struggling and internal frictions between the congressional oversight institutions and the intelligence community, there comes the puzzlement between politics and reality, which leads to the ineffectiveness of congressional oversight and reveals the defect and helpless of the US constitutional system.To sum up and present the US national security legislations in a plain manner, several tables are provided in different part of this thesis, including "the post-war national security legislations", "the post-war national security system", "CIA leadership" "FBI leadership" and the updated "national security leaderships of the Obama government". Over forty US national security laws and regulations were referenced or quoted by this thesis, of which the "National Security Act of 1947" was highlighted. With no Chinese translated version of this act during my research, I just couldn't spare from sharing it, which is both the basic law of US and the start of the US modern national security legislation, thus of vital importance to the present US intelligence community. Therefore, I translated into Chinese the updated version of this act published by the Office of the Director of National Intelligence in 2007. The translation is provided in the appendix of this thesis in a bilingual approach typesetting.