AbstractThis article discusses covert action within the context of the U.S. law. The first section describes the main elements of the U.S. legal regime, including the definition of covert action and the “traditional activity” exceptions, the elements of a covert action finding, and the thresholds and requirements for congressional notification. The second section describes some of the significant limitations on the conduct of covert action. The third section discusses the nature of executive branch legal practice in this area of the law. And the last section draws conclusions about the role of national security law within the context of covert action.

ion. Without understanding process, the lawyer cannot meaningfully apply the law because he won't be in the room to provide advice to the decisionmaker. He will also be excluded from the decisionmaking forum if he does not understand how to apply law to policy in a realistic, but value-based manner. Michael's analysis is realistic. He analyzes the law as it is (or is not, as the case may be), not as he or others might wish it to be. Hence, Michael distinguishes between what he refers to as the operational code and the aspirational or normative myth system. By operational code is meant a set of norms that operate in a certain sector and that actors deem to be authoritative even though the norms may be inconsistent with formal legal codes.,5 Thus, the operational code recognizes that all states are not equal in defining international law, and on some matters, elites matter more than other persons. Quid licitjovi, non licit bovi. This is not a cynical view, nor a matter of Pax Americana; it is descriptive. It is the operational code that informs policymaking. Thus, Michael's scholarship is immediately relevant to practitioners, that is to say, the President, national security principals, congressional leadership, and the lawyers who advise them. If you believe, as do, that the law should regulate decisionmaking and can guide actors toward informed and wise choices, then these individuals are your most important audience. And decisionmakers need to know what the law is at the outset, without policy spin or preferential lean, just as they need to know what the intelligence is, without spin or lean. That does not mean lawyers should limit themselves to yes, no, or I don't know, any more than intelligence analysts should eschew predictions or best judgments. It means they should indicate what is hard law, what is nuanced or debatable law, and what is legal policy directed toward preferred outcomes. Michael's work is policy-based because it is value-based. Michael is realistic without losing sight of the law's ideal and the overriding objectives of human dignity and optimum public order. This interjection of values is accomplished not by pretending the law is something it is not, but by articulating what it should become by identifying preferred outcomes, showing decisionmakers how to achieve those outcomes, and demonstrating why those values improve our physical security and advance our liberty

These are Chief Judge Baker’s remarks reflecting on the scholarship of Professor Michael Reisman in the field of national security law. Chief Judge Baker comments that Professor Reisman is a prolific writer and Scholar-Teacher dedicated to the study of force, minimization of suffering, and the advancement of human dignity and the law. He discusses how Professor Reisman’s work is distinctive in that it identifies and incorporates the critical influence of process, both formal and informal, in decisionmaking, which sometimes overshadows substance.

The United States faces three enduring terrorism-related threats. First, there is the realistic prospect of additional attacks in the United States including attacks using weapons of mass destruction (“WMD”). Second, in responding to this threat, we may undermine the freedoms that enrich our lives, the tolerance that marks our society, and the democratic values that define our government. Third, if we are too focused on terrorism, we risk losing sight of this century’s other certain threats as well as the capacity to respond to them, including the state proliferation of nuclear weapons, nation-state rivalry, pandemic disease, oil dependency, and environmental degradation.The United States should respond to these threats using all available and appropriate security tools, on offense and in defense. Law is one of the essential security tools. Law provides substantive authority to act. Law can also provide and embed an effective process of preview and review to test proposals and validate actions, ensuring that they are both lawful and effective. However, the United States has been slow, or perhaps unwilling, to adopt a legal architecture that maximizes each of these legal benefits. Instead, the political branches have generally adopted an incremental approach, or relied on the President’s authority as Commander in Chief to define the law.This paper describes four principles that should inform the design of a lasting legal architecture to counterterrorism: First, the architecture should reflect an understanding of the strategic value of law in substance, process, and policy. Second, the architecture should reflect the threats it is intended to address, including the potential catastrophic nature of the physical threat, which distinguishes this form of terrorism from that of the past. Third, with limited exception, the law should avoid absolutes — in the authority asserted; in the authority prohibited; or, in bureaucratic design. Finally, the architecture should be lasting, which means among other things that it should be “constitutionally inclusive” in design. A lasting and inclusive architecture will improve security — by maximizing the Executive’s authority to act, sustaining support for tools and policies, and improving the opportunity and efficacy to appraise U.S. actions.

The United States faces an immediate and continuous threat of terrorist attack using weapons of mass destruction, including nuclear weapons. The intelligence function and national security law, including international law -- or more accurately transnational law -- are central to addressing this threat. Indeed, international law is more relevant today in addressing this threat than it was before September 11. Part II of this article describes a continuum of contemporary threats to U.S. national security, with a focus on nonstate terrorism. Part III addresses the role of intelligence and national security law, and in particular law addressed to process, in combating these threats. Part IV addresses the relationship between the intelligence function and international law. Part V describes the responsibilities of the intelligence lawyer.