Leading scholars, senior policymakers and award-winning journalists discussed key national security challenges of our era in a daylong conference Oct. 22, 2018, hosted by the Reiss Center on Law and Security at NYU Law. National Security and Shifting Geopolitics: Challenges at Home and Abroad marked the official launch of the Reiss Center’s new name and a number of other developments in its work—including that Just Security will now be based at the Center.
In case you missed the event, you can watch the conference’s panels below, plus we’ve rounded up some key takeaways we took from the discussions. These observations are our own and are not necessarily shared by each of the panelists.
Panel 1: Seismic Shifts? Changing Priorities and Competing Visions for a Rules-Based Order
NYU Law Dean Trevor Morrison moderated the first panel, featuring former State Department Legal Advisor John Bellinger, former Deputy National Security Advisor Avril Haines, and former National Security Advisor to the Vice President Jake Sullivan. The panelists explored fundamental questions of the global architecture from a national security perspective, including questions of international rule-making and the role of government lawyers in a changing landscape.
- The rules-based order is facing deep challenges, but appears resilient enough to survive.
The rules-based order in recent years has worked to address issues like climate change, Ebola, profound economic crises, and more, and it has the flexibility to continue to handle international problems. But it faces a confluence of challenges, including the evolution to a multipolar world with Russia and China asserting muscle on the global stage (albeit in different ways and with different intentions), rising populist sentiments across the globe, and increasing hostility toward international agreements and institutions, including from the United States, which was central to their creation.
- The rules-based order needs to modernize and “renovate.”
We perhaps should not be too nostalgic about the current rules-based order – it has not been perfect by any means. Many countries have been left out or marginalized by the system; there has been rule-breaking by key actors; international organizations are not always able to hold bad actors accountable; and economic engagement with countries like Russia and China has failed to result in the democratic progress that was promised. The trends we see now may stem more from dashed expectations than a regression of the order itself. To succeed in the future, the system needs to be updated to broaden and deepen participation, including by non-state actors; take into account dynamics within states (in the United States and elsewhere); grapple with technological advances; and right-size expectations.
- The rules-based order of the future may need to evolve so that it can survive an inconstant United States, if necessary.
Various panelists described challenges from within the United States, including a longstanding trend of difficulty moving treaties through the Senate; an often zero-sum approach by the current administration; and a declining emphasis on universal values. Even if corrected for in the future, there is no telling whether the current outlook will again be resurgent in the coming decades. It remains to be seen whether adjustments to account for these developments—such as reliance on less formal approaches to rulemaking—constitute a weakening of the system or a positive development that provides evidence of its resilience. The country and the system will need energetic and creative lawyers to help forge the best approach in the future.
Panel 2: National Security and the Midterm Elections
The second panel examined congressional engagement on national security issues, including a likely agenda following the midterms, potential opportunities for bipartisan cooperation, and constitutional and inter-branch dynamics. Moderated by Democracy Fund’s Lara Flint, the discussion featured Rebecca Ingber, associate professor at Boston University School of Law and a non-resident senior fellow at the Reiss Center; David Kinzler, legislative director for Senate Foreign Relations Committee Chairman Bob Corker; Luke Murry, national security advisor to House Majority Leader Kevin McCarthy; and Margaret Taylor, former Democratic chief counsel of the Senate Foreign Relations Committee.
- Foreign policy and national security are not driving American voters.
The primary issues driving voters in the midterm elections are healthcare, taxes and Trump. While the polarization of the American public has had less of an impact on how Congress addresses foreign policy issues than domestic issues, even the most important national security issues have not been big motivators for voters. For example, the conflict in Afghanistan rarely comes up as a concern. However, voters are becoming more concerned about the national debt and defense spending, and some groups have been consistently concerned with the lack of attention to and funding for foreign aid given the common public misperceptions regarding its scope and purposes.
- Congress is not using all of its constitutional foreign affairs powers, especially regarding the use of force and war powers.
Congress faces collective action problems, coupled with a belief on the part of some members that the executive branch is best able to handle foreign policy issues. Congress also faces challenges in legislating and overseeing a vast executive branch with far greater resources than Congress has provided for itself. Moreover, when Congress delegates power to the executive branch over multiple presidential administrations, as has occurred with war powers, it becomes difficult to reassert its authority. In addition, Congress has been unable to muster a majority to legislate on issues of fundamental importance to U.S. national security and to reassert its constitutional role regarding the use of force, such as defining the contours of the conflict authorized by the 2001 Authorization for Use of Military Force.
- The Senate has been abdicating its role in providing advice and consent to treaties.
Over successive presidential administrations, Congress has become more of an impediment than an ally in international lawmaking. Panelists explained the practical reality that, given the rules of procedure in the Senate, unless there is unanimous consent from all senators that a treaty should be considered by the full Senate, the majority leader has to devote three to five days of floor time to a treaty before a Senate vote is possible. Given the lack of perceived political upside to doing so, getting treaties considered by the Senate is an uphill battle. In addition, some senators have expressed outright hostility to treaties irrespective of their content. As a result, the executive branch has had to look to agreements that do not require Senate advice and consent, but there are a range of circumstances in which advice and consent treaties cannot be replaced by sole executive agreements or non-binding arrangements.
Panel 3: National Security Journalism in an Age of Disinformation
Chris Hayes, host of MSNBC’s “All In with Chris Hayes,” moderated the third panel, a conversation among journalists and legal experts on challenges in the field today, including how to handle disinformation campaigns and major leaks or hacks of information by foreign governments. The panelists were Natasha Bertrand of The Atlantic; Carol Leonnig of the Washington Post; David McCraw, vice president and deputy general counsel of the New York Times Company; and David Pozen, professor of law at Columbia Law School.
- The hacking of sensitive information by foreign intelligence services presents journalists with new challenges, but in some ways the game has not changed.
The 2016 hacks of the Democratic National Committee (DNC) and the emails of John Podesta were part of an emerging trend of foreign intelligence services hacking and publicly dumping large amounts of sensitive data. While the publication of such information likely is legally permissible (see the Supreme Court decision in Bartnicki v. Vopper), and while national security journalists will often have a compelling case that the hacked information should be made public, panelists discussed whether journalists nonetheless have a responsibility to treat information differently when it comes from foreign intelligence services versus from other actors; and whether information that emerges from hacking is fundamentally different from information that is leaked. Some panelists noted that journalists have always dealt with sources with nefarious agendas, while others found these new trends to present distinctly new challenges.
- National security journalists, more than ever, need to be transparent with their readers.
In an age of disinformation, national security journalists have a greater responsibility to their readers to be transparent and upfront when information comes from a source with questionable motives, particularly foreign intelligence services. However, two broad challenges arise: Journalists need to balance transparency with adequately protecting their sources; and readers need to decide how to respond if confronted with revelations about the potential agendas of the sources for an article. In some instances, choosing not to publish at all may be the appropriate choice.
- Longstanding guiding principles for publication are under pressure.
Disinformation campaigns arise against the backdrop of a changing media landscape. What is deemed newsworthy has expanded, thanks partially to hacks, and there is no shortage of platforms for publication, regardless of the truthfulness of the information. Most Americans no longer get their news from one or two reputable news sources, and the traditional gatekeeper function of established media outlets has decreased dramatically with the advent of sites like Wikileaks, which release massive amounts of sensitive information with little vetting. Moreover, social media platforms, like Facebook, play a major role in many individual’s perceptions of current events. Journalists now have more mechanisms to gather information from secretive sources than ever before, including from secure drops on sites like the New York Times and the Washington Post, and through encrypted apps like Signal and WhatsApp. While such systems ease the path for sources to provide information of public concern, these mechanisms also allow sources to remain anonymous to journalists trying to report the story. Traditional news outlets won’t publish information unless they know the source, even if they don’t publish the identity, but other outlets might not be as judicious. Given these radical changes, more journalists must exercise restraint by carefully assessing the truthfulness and newsworthiness of information before running with the latest story. Additionally, media companies must invest more in combating disinformation. Newsrooms should train individuals to become experts in forensic digital analysis, to help identify disinformation. This function is especially important as disinformation becomes more sophisticated, such as through deep fakes.
Panel 4: Conclusions and Looking Ahead
The final panel, with affiliated faculty and fellows of the Reiss Center, drew out observations and conclusions across the panels and discussed the way ahead. Moderated by David Golove, Hiller Family Foundation Professor of Law at NYU School of Law and faculty director at the Reiss Center, the panel featured: Tess Bridgeman, senior fellow and visiting scholar, Reiss Center on Law and Security, and former special assistant to the president and deputy legal advisor to the National Security Council; Ryan Goodman, Anne and Joel Ehrenkranz Professor of Law at NYU School of Law and faculty director of the Reiss Center; Stephen Holmes, Walter E. Meyer Professor of Law at NYU School of Law and faculty director of the Reiss Center; and Lisa Monaco, distinguished senior fellow at the Reiss Center and adjunct professor of Law at NYU School of Law, and former Homeland Security and Counterterrorism Advisor to the President.
- Counterterrorism is still a priority for U.S. national security.
The Trump administration’s National Security Strategy and National Defense Strategy highlighted the centrality of great power competition in today’s national security landscape. While the United States undoubtedly needs sound strategies to respond to the rise of China and Russian aggression, among other geopolitical shifts, counterterrorism policy also remains a priority. The trend under the Trump administration towards unilateral action and away from multilateral cooperation renders a successful counterterrorism strategy much more difficult to achieve.
- The United States needs to bolster norms, reinvigorate treaty bodies, and invest in international institutions.
We are facing a crisis of expectations regarding the norms and laws governing the global order. Panelists agreed that democratic leaders must revitalize and invest in existing international institutions, while at the same time explaining their relevance and their limits to the public. Multilateral institutions created in the post-WWII era also must be adjusted to ensure they are inclusive and capable of addressing today’s most pressing national security challenges. The Trump administration has expressed hostility to global norms and rules (including by supporting regimes that openly flout them) and has withdrawn from a range of multilateral arrangements, including advice and consent treaties and important non-binding arrangements (like the Iran nuclear deal). Given this retreat, the global community needs to explore alternatives that take into account the inconstancy of the United States. Finally, the panel discussed some of the ways in which the legal profession can rise to these challenges in an age of shifting geopolitics.
- Addressing domestic dysfunction is central to creating a stable global order.
Revitalizing U.S. domestic institutions is a necessary element of bolstering international norms and institutions. This includes a functioning Congress that is willing to legislate in the national security area and exercise bipartisan oversight, and robust and independent media that are able to convey objective truth to the public. Increasingly, democratic societies must address domestic drivers of dysfunction at home before they can sustain international arrangements capable of preventing conflict, governing state behavior, and mobilizing cooperation on key challenges.