Transition & National Security Law

Yesterday there was a post on National Review Online’s Tank that referred to an essay published in the American Bar Association's National Security Law Report. The author of the essay, Judge James E. Baker of the U.S. Court of Appeals for the Armed Forces, offers some advice on how the Obama presidential transition team could get a “running start in the areas of national security law and Presidential process.” Judge Baker’s suggestions are excellent and his analysis is superb. I just hope that someone on the Obama transition team reads his article and takes his advice.

Judge Baker makes a point that the passing of the torch of government from the President to a President-elect is part of the rhythm of government. It is something that we, as Americans, take for granted; but hope goes seamlessly. According to Judge Baker, however, the transition period creates both a tactical and a procedural vulnerability. Our Country is tactically vulnerable during the transition of one administration to another because the old administration is hesitant to act or make policy commitments while the new administration won’t have developed its template for handling problems and their campaign rhetoric may not have adjusted to hard reality. We are also procedurally vulnerable. When one administration leaves their offices, they leave little to guide the new administration. There may be no phone lists or points of contact established between action officers. There may be no personnel in place to make decisions (particularly if the decision-maker needs to be approved by Congress). There may even be no offices or infrastructure in place.

So how does a new administration mitigate the tactical and procedural vulnerabilities inherent in a transition? According to Judge Baker, the transition team for the new administration must recognize them and address them. The new team must avoid flushing all the policies and procedures of the old team. Instead, they must evaluate what worked and what did not. The transition team should also do their best to limit the decisions that must be made during the first days of the new administration by getting ready for those decisions in advance. The new administration should learn relevant national security law in advance, as well as the process for setting a strategic legal framework. They should make critical decisions about process before the inauguration and write Presidential Directives to announce those decisions that will be issued the first day of the new administration. Finally, according to Judge Baker, they should set a six-month policy agenda and determine who is in charge. Sounds like good advice to me!

I agree wholeheartedly with Judge Baker’s conclusion, “In some cases, ‘better is the enemy of good enough.’ Not so in transition. We must do better; we cannot risk less at a time when U.S. armed forces are committed to combat, WMD terrorism is a realistic prospect, and pandemic disease incubates.” As I said before, I just hope someone from President-elect Obama’s transition team reads Judge Baker’s essay and has the judgment to use it as a template.