Printer Friendly

The law: unilaterally shaping U.S. national security policy: the role of National Security Directives.

The president has at his disposal an array of tools to prescribe policy for the executive branch and, in some instances, to effect policy change unilaterally. These include executive orders, proclamations, memoranda, executive agreements, signing statements, and National Security Directives (NSDs).

The legal authority for all the tools of unilateral action is intrinsically linked to the question of the extent of the reach of executive power generally. There is a whole body of legal literature which debates this question (1) and is well beyond the scope of this article. However, the Supreme Court has formally recognized the president's power to act unilaterally, in three cases from the late 1930s to the early 1940s. Curtiss-Wright (2) (1936), Belmont (3) (1937), and Pink (4) (1942) collectively established the president's authority to issue directives involving "external affairs."

Unilateral Presidential Power

A growing body of work (5) has developed in the field of presidential studies in recent years on unilateral presidential power. Unilateral presidential power is the ability of the president to act independently, either with or without the explicit consent of Congress or the courts, to effect policy change outside the bargaining framework (Howell 2003, 13). As such, the president has the advantages that he acts alone and can make the first move unilaterally to effect policy change and, therefore, places the burden on Congress to counter his action through legislation or on the courts to overturn the action (Mayer 2001, 26). So, then, by acting either unilaterally through the administrative process or through engagement in the legislative process, the president can influence policies which carry the weight of law.

To date, scholars have considered executive agreements (Martin 2005; Margolis 1986), signing statements (Cooper 2002, 2005), memoranda (Cooper 2001, 2002), and executive orders (Howell 2003; Mayer 2001; Cooper 2001, 2002; Ragsdale 1998; Krause and Cohen 1997, 2000; Deering and Maltzman 1999). Mayer (2001) and Howell (2003) distinguish "significant" executive orders from nominal ones using differing methodologies. It is in the context of the theory of unilateral executive power that this article examines the role that NSDs have played in unilaterally shaping U.S. national security policy.

The tool of unilateral action with which this article is concerned is NSDs. As already noted, previous works on unilateral power have not focused on NSDs, although Cooper (2002) devotes a chapter to describing, in general, what, how, and why they are used and the potential strengths they have and the problems their use may cause. Christopher Simpson (1995) has published a compilation of some Reagan and George H. W. Bush NSDs. Selected NSDs are examined in research into individual policy areas, such as covert actions, (6) to gain an idea of policies pursued in the area by different presidents.

The Creation and Development of NSDs

NSDs are issued through the National Security Council (NSC), are usually classified, and have been called different names by different administrations. President Lyndon Johnson described National Security Action Memoranda (as they were called under his administration) "a formal notification to the head of a department or other government agency informing him of a presidential decision in the field of national security affairs and generally requiring follow-up action by the department or agency addressed" (Cooper 2002, 144). Unlike executive orders, there is no publishing requirement, and many NSDs remain fugitive. A well-known example of an NSD in its earliest manifestation is NSC 68 of April 14, 1950, to which the advent of the Cold War can be traced.

An appreciation of the creation and evolution of NSDs is best derived from a brief history of the shaping and development of the NSC, which has varied with each individual president (Cooper 2002, 145). The rationale for the establishment of the NSC was to provide a formally structured process to coordinate U.S. foreign and military policies and advise the president on national security matters. As part of the management of decisions, NSC policy papers were drawn up under the Truman administration and continued by the Eisenhower administration. These papers, developed as a vehicle for discussion at NSC meetings, originated from the council's members, executive secretaries, and support staff, most coming from the Departments of State and Defense (Relyea 2005a, 8). Some policy papers served as information to aid discussion, while others posited a problem or issue, analyzed it, and made recommendations (Cooper 2002, 146). Those containing policy recommendations made their way to the president, whose signature indicated approval of the proposed policy (Falk 1964, cited in Relyea 2005a, 9). By the end of Harry Truman's administration, "approximately 100 NSC papers mandated operative policy" (Relyea 2005a, 9), and approximately 270-300 were prepared by the end of the Eisenhower administration (Relyea 2005a, 9).

The Kennedy administration developed the NSC policy papers into a series called National Security Action Memoranda (NSAM). Initially, these papers were used to indicate what the president thought about a particular country/issue. They often requested further information from various heads of departments or agencies on national security issues that the president desired to know more about or what was being done or whether something could be done. As the series progressed, policy decisions were expressed in the NSAMs, informing the heads of agencies or departments of the policy positions that the president had decided on for a particular country, region, or issue. Some also directed actions that were to be taken to implement these policies. Within this series, there were also requests from the president for studies to be undertaken on specific issues or countries/regions. In later administrations, these studies formed a separate series of documents. The Johnson administration continued with the NSAM series in a similar fashion.

During Richard Nixon's presidency, with Henry Kissinger as national security adviser, NSDs took on a new name as designated in NSDM 1 (January 20, 1969). A separate series of study papers was established, called National Security Study Memoranda, that began with a request for a study answering 26 questions on Vietnam (NSSM 1, January 21, 1969). This could then be used as a basis for the president to determine a policy, and this decision would be recorded in a National Security Decision Memorandum (NSDM). The Ford administration continued the NSDM and NSSM series (Relyea 2005a).

The Carter administration renamed the two series Presidential Directives (PDs) for decisions and Presidential Review Memoranda (PRM) for studies, as established in PD 1 (January 20, 1977). President Ronald Reagan designated his directives as National Security Decision Directives (NSDDs) and National Security Study Memoranda (NSSM) in NSDD 1 (February 25, 1981). President George H. W. Bush renamed the two series National Security Directives (NSDs) and National Security Reviews (NSRs). During the tenure of President Bill Clinton, the series again received a different name. NSDs became Presidential Decision Directives/National Security Council (PDD/NSC) and NSRs became Presidential Review Directives (PRDs) (Relyea 2005a).

President George W. Bush returned to the original dual purpose and renamed these instruments National Security Presidential Directives in NSPD 1 (February 13, 2001). Additionally, since the establishment of the Department of Homeland Security, Bush created a separate series of instruments called Homeland Security Presidential Directives (HSPDs). HSPD 1 states that HSPDs "shall record and communicate presidential decisions about the homeland security policies of the United States." (7) In one instance, a security classified version of a national strategy to combat weapons of mass destruction was designated NSPD 17 (September 14, 2002) and an unclassified version was issued as HSPD 4 (December 11, 2002). In another instance, the creation and mission of the Domestic Nuclear Detection Office, located within the Department of Homeland Security, was mandated by a single, classified instrument, denominated as NSPD 43 (April 15, 2005) and HSPD 14 (April 15, 2005), but was acknowledged publicly with a summary fact sheet.

Congress and NSDs

Perhaps the most interesting studies of NSDs to date are a couple of General Accounting Office (GAO) (8) reports from 1988 and 1992 that considered the use of NSDs in making and implementing U.S. policy. These were carried out as a result of the efforts of Congressman Jack Brooks and Speaker Jim Wright to find out more about NSDs and White House management of them. The trigger for their interest occurred after hearings in 1987 on Reagan's NSDD 145 (September 17, 1984) concerning technology transfers and telecommunication. A series of correspondence ensued between Brooks and Wright with National Security Adviser Frank Carlucci, asking the latter to provide a full list of NSDs to Congress. Carlucci responded with a list of those NSDs already declassified or partially declassified and fact sheets, totaling 58 (Cooper 2002, 194). Brooks sponsored legislation twice to address disclosure of NSDs. (9) However, these efforts fizzled out when the security classified status of NSDs could not be overcome and attention otherwise was turned to supporting U.S. troops in the first Gulf War. I shall return to considering some of the findings of these GAO reports later in the article.

As already mentioned, the vast majority of these directives are classified, and most administrations to date have not notified Congress about the directives' existence, let alone the number issued or their titles or full content despite requests from Congress for copies. (10) For the 1992 report, the GAO contacted the staff of the Senate and House Committees on Appropriations, Armed Services, Foreign Relations/Affairs, and Intelligence, and found that none of these panels regularly received copies of NSDs for review, learning about them instead only if the executive branch disclosed the information, citing the NSD number. Another way Congress may occasionally find out about NSDs is through unclassified fact sheets, which may be released by the executive branch around the time the directives are created and issued, although the actual content of the directive remains classified. A declassified fact sheet may be issued if the administration wishes to either gain support from Congress and/or the public for a policy or appear to be doing something constructive about an issue, such as the Clinton administration's response to criticisms about the serious problems with operations in Somalia and the Balkans. The Clinton administration initiated a review of U.S. participation in international peacekeeping activities in PRD 13, (11) culminating in PDD 55 (12) and a declassified document outlining key elements of the new policy.

Administrations have also refused to send witnesses to testify at hearings on the subject of NSDs. For example, Colin Powell refused to testify about NSDs in a congressional investigation when he was national security adviser (Cooper 2002, 145). There is a potential separation-of-powers issue concerning NSDs, as administrations have asserted that NSDs are privileged communications. (13)

The declassification procedures for NSDs have been decided by the executive branch and have been set out in various executive orders, (14) the most recent of which is E.O. 12958, as amended by E.O. 13292. Under E.O. 12958, as amended, there is provision for mandatory declassification review regarding the continued need for the classification of a record, including an NSD, and the decision to continue classification in whole or in part may be appealed to the Interagency Security Classification Appeal Panel (Relyea 2005b).

The Role of NSDs

As the brief review of the development of NSDs shows, their function is not only to provide reviews/information for the president to make decisions about national security policy but also to provide a vehicle for "recording and communicating presidential decisions" (HSPD 1, October 29, 2001) about national security policy.

When considering how NSDs have been used to make U.S. national security policy unilaterally, it is necessary to define what we mean by national security policy. The scope of national security policy can be defined widely, and most definitions will include foreign, military, and intelligence policy. Perhaps, however, the scope of national security policy can be best defined by the collection of issues that national security directives themselves cover, for they are what the executive branch uses to address all aspects of national security policy.

NSDs have covered some common topics over time; a brief overview follows. (15) A single NSD may relate to one or more of the common topics and, therefore, does not necessarily fit neatly into one category. For example, Reagan's NSDD 123 (Next Steps in Lebanon, February 1, 1984) sets policy toward Lebanon and includes military doctrine, coordination and deployment of troops, interdepartmental coordination, and public diplomacy.

Guidance for Negotiations

A considerable number of NSDs are used to provide guidance or instructions to American negotiators for treaty or other negotiations. These vary from detailed instructions, such as the Strategic Arms Reduction Treaty, to general overarching themes, such as Law of the Sea discussions about rights to freedom of navigation. Also, some NSDs are used to set out guidance or objectives for visits to or from foreign leaders or summits, such as NSDD 288, (16) which established objectives for the Washington summit with Gorbachev on U.S.-Soviet relations.

National Security Organization

At the start of each new administration, the first couple of directives issued usually deal with how the NSC is to be organized and specify the name, form, and procedures for developing NSDs and the mechanisms for the disposition of previous directives.

The Bush II administration wasted no time in issuing NSPD 1 on February 13, 2001. Similarly, the Nixon (NSDM 1 and 2, January 20, 1969 and NSDM 5, February 3, 1969), Carter (PD 1 and 2, January 20, 1977 and PD 3, February 11, 1977), Clinton (PDD 1 and 2, January 20, 1993), and Ford (NSDM 245, August 9, 1974) administrations moved to issue their organizational NSDs early on. But it was not until February 1981 that Reagan issued his NSDD 1, setting out the name of his NSD series and defining the role of each, and it was not until January 1982 that his organizational and operational plan was issued in NSDD 2. This delay in issuing NSDD 2 was due to internal battles between key players of the administration.

Management, Control, and Coordination

Presidents confront many issues of coordination, management, and control. These challenges and, indeed, solutions, vary from one administration to the next, and NSDs are often used to address them. One such issue is how to coordinate policy development and implementation across agencies and departments. Johnson's NSAM 341 (March 2, 1966) and Nixon's NSDM 3 (January 20, 1969) on coordinating interdepartmental activities overseas or John Kennedy's NSAM 213 (January 8, 1963) on interdepartmental coordination for Cuban affairs are examples of NSDs being used to cover such challenges. The control of information, including classification of information, declassification of information, and the prevention of leaks, is included in this category. An example of the use of NSDs to control information, which attracted the attention of Congress, was the Reagan administration's issuance of NSDD 84 (Safeguarding National Security Information, March 1, 1983) in conjunction with E.O. 12356 establishing new security classification policy. This NSDD sanctioned the use of polygraph tests for employees under investigation of unauthorized disclosure of classified information, and was broad in its application to all agencies of the federal government that handled sensitive information (Cooper 2002, 154). A further solution to coordination and management that presidents have used over time is the establishment of task forces. Reagan made use of such panels, for example, the counterintelligence/countermeasure implementation task force established by NSDD 196 (November 1, 1985). The NSDD called for the established task force to develop the "time table, procedures and methods to implement this Decision Directive," which included the aforementioned polygraph policy. These challenges also extend to the management of U.S. intelligence operators and assets abroad and the assignment of responsibility to various heads of departments and agencies, such as Kennedy's NSAM 203 (November 7, 1962) assigning responsibilities for port security to the attorney general and secretary of the Treasury.

Setting or Reviewing Policy for Countries or Regions

National security directives are often used to set or review U.S. policy toward individual countries or regions, a sample of which appears in Table 1, where it becomes apparent that there are continuing themes that run across administrations, such as policy toward the Soviet Union during the Cold War period as well as Vietnam/Southeast Asia. Some countries, such as Cuba, Iran, and South Africa, have attracted the attention of administrations and have been the subject of a number of NSDs over time. For example, Cuba has been a country of continuous concern from at least Kennedy to Bush II. (17)

Shaping Intelligence Assignments and Research Requirements

Many of the policies established in NSDs originate from major studies carried out by NSC staff or task groups set up for the purpose of considering a particular issue. Both the Kennedy and Johnson administrations used NSDs as a vehicle for requesting studies or information. These initially started as requests for information from the president, such as Kennedy's NSAM 12 (Re: Vietnam, February 6, 1961) requesting information on troop numbers in Vietnam and asking for General Lyman L. Lemnitzer's judgment on Kennedy's questions: "Is it possible for us to distribute the available forces we now have in Vietnam more effectively in order to increase the effectiveness of anti-guerrilla activities? Are there troops stationed along the border who could be made available for this activity?" Later administrations, beginning with Nixon, established a separate series of documents requesting research on particular issues. These were often quite detailed requests, with Nixon/Kissinger issuing 27 in the first two months in office, starting with NSSM 1 (Situation in Vietnam, January 21, 1969) providing six pages of questions to be addressed. These studies often culminated in one or more reports. At least in the Nixon administration they would provide options, some of which the president would refer to in an NSDM when he approved them as U.S. policy.

Development of Basic National Security Doctrine

NSDs have also been employed across administrations to provide broad strategic goals and national security strategy, a well-known example of which is Truman's NSC 6818 launching the Cold War. Examples of subsequent administrations' use of NSDs to elucidate basic national security policy are Eisenhower's NSC 162/2 (Basic National Security Policy, October 30, 1953), Kennedy's NSAM 182 (Counterinsurgency Doctrine, August 24, 1962), Ford's NSDM 348 (US Defense Policy and Military Posture, January 20, 1977), Carter's PD 18 (US National Strategy, August 24, 1977), and Reagan's NSDD 32 (US National Security Strategy, May 20, 1982).

Economic Policy

Although economic aspects of national security have not always been formally recognized as having a central role in national security policy, they are increasingly included in NSDs. The issues covered in NSDs range from the cost of national security policies pursued, such as Reagan's Strategic Defense Initiative and assessments of costs of military deployments, to trade with other countries, including weapons and broader trade issues such as the international coffee (19) or sugar markets. (20) Also, economic policy has been used as a weapon where military action may not be an option, such as the use of sanctions. An example of this may be found in NSDD 66 (February 25, 1982), which essentially set out a plan for economic warfare against the USSR in conjunction with "the Allies" as part of the U.S. Cold War strategy. Foreign aid and assistance has also been the subject of some NSDs over time--for example, Nixon's NSDM 101 (FY 1971 Economic Assistance Program for India, March 2, 1971). Economic policies toward individual countries have also been the subject of NSDs, for example, Nixon's NSDM 154 (Vietnam Economic Policy, February 17, 1972).

Military Doctrine and Warfare Coordination

NSDs have been used to develop and implement military policy and address strategic challenges, including weapons deployment systems, an example of which is the Reagan administration's Strategic Forces Modernization policy. NSDs have also been employed to initiate military action and direct combat operations, such as Bush I's NSD 54 (January 15, 1991) launching Operation Desert Storm in 1991 and Reagan's NSDD 110 (October 21, 1983) setting in motion the invasion of Grenada in 1983. They have also been used to set out rules of engagement (NSDD 128, Lebanon, February 26, 1984) and to authorize the use of certain weapons (NSAM 115, Defoliant Operations in Viet Nam, November 30, 1961).

Arms Sales and Transfers

Many NSDs concerning various regions, countries, or situations have included assistance, in terms of arms sales or transfers, to such regions as Jordan, the Persian Gulf states, and Latin America. Some administrations have used NSDs to set out arms transfer policy (21) (Carter's PD 13, May 13, 1977), seeking to limit arms sales and transfers, or Reagan's NSDD 5 (Conventional Arms Transfer Policy, July 8, 1981), advocating an active conventional arms policy as part of the administration's foreign-policy strategy. Military assistance to friendly nations, such as Israel, has been a common occurrence over administrations. (22)

Establishing Positions on International Issues

A number of NSDs have established policy concerning the environment, (23) weather modification, (24) narcotics, (25) human rights, (26) and biological and chemical weapons use, (27) as well as such international issues as the Berlin crisis (28) or the response to the Soviet destruction of the KAL 707 airliner in 1983. (29)

Management and Control of Nuclear Weapons and Power

NSDs have been used over time in the management and control of nuclear weapons and power, principally to (1) control nuclear stockpiles and develop or update procedures for their use, (30) (2) deploy weapons and delivery systems, (31) (3) manage the development and testing of nuclear weapons, (32) and (4) make policy for and manage nuclear technology assistance to other countries, including the peaceful use of nuclear energy with a simultaneous concern for nonproliferation (33) (Cooper 2002, 172).

Public Diplomacy and Psychological Warfare

Sometimes NSDs have been used to establish and implement "public diplomacy" strategies--otherwise known as propaganda--either as a subject in its own right (34) or as part of the overall regional or country policy contained in the directive. (35) These directives can target both domestic and foreign public opinion, (36) including trying to influence Congress to support or not actively oppose the administration's policies. (37) The Vietnam War (38) is a useful illustration. In several NSAMs, (39) Johnson tried to coordinate a public diplomacy policy to provide the American people with a "complete and accurate picture of United States involvement in Southeast Asia and to show why this involvement is essential" (NSAM 308, June 22, 1964). As part of his attempt to influence U.S. public opinion with respect to his renewed Cold War policies directed at the Soviet Union, Reagan issued NSDD 77 (Cooper 2002, 173), which set up a special planning group responsible for "overall planning, direction, coordination and monitoring of implementation of public diplomacy activities" (NSDD 77, Management of Public Diplomacy Relative to National Security, January 14, 1983).

Covert and Low-Intensity Operations

Presidents since Truman have used NSDs to design and operate covert and "hybrid" (mixing overt and covert elements) operations, such as the Bay of Pigs. Truman's NSC 1/1 provided the basis for a covert effort to influence the Italian elections and formal institutionalization of covert actions in NSC 4 (40) and NSC 10/2 (June 1948). Johnson used an NSD to rename Eisenhower's 5412 Committee overseeing covert operations as the 303 Committee in NSAM 303. (41) Even the foundations of the Iran-Contra scandal can be traced back to Reagan's NSDD 17 (January 4, 1982), in which the administration sought to circumvent the Boland Amendment that Congress had passed to limit the use of U.S. funds in support of the Contras (Cooper 2002, 181).

Science and Technology

Space has been deemed an issue of national security, as evidenced by its appearance in NSDs across administrations (see Table 2). Since Kennedy's NSAM 144 (Assignment of Highest National Priority to the APOLLO Manned Lunar Landing Program, April 11, 1962) to at least Bush II's NSPD 40 (U.S. Space Transportation Policy, January 6, 2005), space has been on the national security agenda. Bush I even had a separate series of National Space Presidential Directives (42) dealing with U.S. space policy. As with space policy, a number of directives over the years have focused on science and technology in terms of transfer and research (43) and telecommunications policy. (44) Reagan issued NSDD 189 (National Policy on Transfer of Scientific, Technical and Engineering Information, September 21, 1985), which sought to control the "flow of science, technology, and engineering information produced in federally-funded fundamental research at colleges, universities, and laboratories." Clinton established a series of directives called Presidential Decision Directives/National Science and Technology Council (PDD/NSTC) and Presidential Review Directives/ NSTC for making decisions on space, science, and technology policy and requesting studies in these areas.

Homeland Security and Civil Defense

A number of directives over the years have concerned a range of civil defense policies, including critical infrastructure protection, contingency planning, and continuity of government, (45) and issues such as immigration control/refugee policy and terrorism. (46) Additionally, as mentioned earlier, Bush II introduced a separate series of HSPDs that cover homeland security policy decisions.

Findings

The limited studies that have been carried out on NSDs (Cooper 2002; U.S. GAO 1988, 1992; Simpson 1995) hint at the significance of this tool in the shaping of national security policy. Of these, the 1988 GAO report estimated that "since 1961 at least 1,042" NSDs had been issued, of which 247 had been publicly released (GAO 1988, 2). My estimates put the figure from 1961 to the present at around 1,327; if we include the study series and HSPDs, the figure moves up to approximately 1,790. Although the Clinton administration moved to declassify many NSDs, providing lists of the numbers and titles, we do not yet have a list of how many have been issued in the Clinton and Bush II administrations. The Project on Government Secrecy of the Federation of American Scientists (47) has estimated how many these administrations may have issued, using numbered fact sheets and various other sources.

Total NSDs Issued by the President

After collecting the instruments in some form, I compiled a database of the NSDs. (48) Figure 1 depicts the total number of NSDs excluding the separate study series (e.g., NSSMs, PRDs, NSSDs, NSRs). Reagan, followed by Kennedy and Nixon, issued the most NSDs. I have also included in Figure 1 the total number of NSDs incorporating the study series (and HSPDs) in order to provide a more accurate reflection of the total number of NSDs issued by each president. From the totals including the study series, we observe that Nixon issued the most NSDs overall, followed by Reagan and then Kennedy.

[FIGURE 1 OMITTED]

Obviously, Reagan served two full terms and Nixon a full term and just over 18 months of a second term, which provides some explanation regarding these initial observations. So, to account for the differences in term length, I sorted the data into the different terms for Reagan and Nixon. As Figure 2 shows, Nixon issued the most NSDs in his first term when we include the study series and Reagan issued roughly the same number in both terms (192 and 190, respectively).

[FIGURE 2 OMITTED]

An initial consideration of the total number of NSDs issued by each president provides some insights into which presidents have employed NSDs most often. We can extend our understanding of NSDs further by considering their usage over time. In order to consider patterns in the time series, I sorted the NSDs, excluding the separate study series, by half-year. (49) An obvious problem with dividing the data into half-years is that, during the selected period (Kennedy 1961 to Bush I 1993 (50)), Kennedy was assassinated in November 1963 and Johnson succeeded him and Nixon resigned in the wake of Watergate in August 1974 and Ford succeeded him. However, both the aforementioned changes occurred in the second half of the respective year (see Figure 3).

[FIGURE 3 OMITTED]

Time Series of Total NSDs Issued

A couple of provisional comments can be made based on the discernable patterns unearthed from the data so far. First, with the exception of Kennedy, Republican presidents tend to issue more NSDs than Democratic presidents. Second, it appears that, where a president of the party opposite to the incumbent administration is elected, the outgoing administration generally increases the number of NSDs issued after a decline during the preceding election campaign. (51) It is possible to extrapolate that this increase may be because policies contained in NSDs remain effective unless rescinded or modified, providing the outgoing administration with an opportunity to influence policy just before a new president from the opposite party takes office. Further exploration of these initial observations is part of a continuing research project on this subject.

"Significant NSDs"

There are problems posed by using the total number of NSDs and seeking to explain the patterns in the time series. This method does not show when the president sets policy as opposed to issuing administrative orders.

In a similar approach to that taken by Howell (2003) when he considered the use of executive orders, we need to find a way to differentiate "significant" NSDs from nominal ones. Determining policy significance is fraught with problems, such as source bias, and, due to its inherently subjective nature, is open to many obvious criticisms. However, it is necessary to find a meaningful way to distinguish important NSDs which impact on policy and reach outside the governmental structure and its internal administration from those which, for example, merely request information (Howell 2003, 79). It is possible to develop more objective criteria for those tools that are in the public domain (in the Federal Register or Public Papers of the Presidents). It is not easily done in the same way for NSDs. Using sources such as the New York Times or Congressional Record is insufficient because those sources only learn of selective NSDs through leaks, fact sheets, or declassification that often occurs some years after the issuance of an NSD. So, a different set of criteria is needed to distinguish significant NSDs from those which are not important in shaping U.S. public policy. Policy in this context is understood as "a statement of goals or objectives which a President sets and pursues" (Relyea 2005a, 2). The 1988 GAO report found that, from the 247 NSDs that had been publicly released, 116 (approximately 47 percent) fell into three identified categories (GAO 1988, 2). Using these three categories (establishes policy, implements policy, and authorizes commitment of federal government resources), I determined which NSDs were significant by reading each directive. Some NSDs are partially declassified, thus providing incomplete knowledge of the subject or consequences of the directive. (52)

The data set is based on the 1,200 NSDs (decision series only, except for Kennedy and Johnson) issued between the Kennedy administration and the Bush I administration. The Clinton and Bush II NSDs were excluded from the data set, as the vast majority of them remain classified at the time of writing. Of the 1,200 NSD issued, 104 (9 percent) are still classified and, therefore, their significance is indeterminate, which leaves a data set of 1,096. Due to the generally classified nature of NSDs, we are working with an incomplete sample. As such, there may be a sampling bias--particularly with the later administrations--where there remains a higher number of classified NSDs, which is likely to have an impact on the number of significant NSDs.

The preliminary results show that, of those NSDs available and analyzed, 54 percent of the total number (1,096) of NSDs is significant. The overall percentage of significant NSDs differs by 7 percent from the GAO report figure of 47 percent.

Conclusion

NSDs have often been used to shape U.S. national security policy unilaterally. However, these are not the only tools that have been employed to set public policy unilaterally. Indeed, a combination of executive orders, presidential memoranda, and proclamations, among other instruments, may be used in conjunction or separately to achieve the president's policy goals. However, the use of NSDs poses a substantial challenge to Congress in terms of the notable informational advantages the executive holds over Congress when employing this tool. The other tools are generally (53) within the public domain and, therefore, Congress has the opportunity at least to acquiesce or to overturn the policy if it disagrees. NSDs, by their very nature, are shrouded in secrecy, and often Congress does not find out about their existence or content until many years later, which impedes the legislature's ability to carry out its oversight responsibility and limits its policy-making role. Despite congressional interest in NSDs in the late 1980s and early 1990s, there is still no reporting requirement in place, and presidents continue to control the selective disclosure of NSDs, using declassified versions or fact sheets. There are many interesting questions as to how presidents have used NSDs to shape policy unilaterally, which are being considered as part of a continuing study, but this article serves as an introduction to a subject that has received little attention and seeks to set this in the context of new ideas about the scope of presidential power.

AUTHOR'S NOTE: Many thanks to Harold C. Relyea for his constructive comments on the draft. Thanks also to William Howell for his helpful feedback on an earlier draft.

References

Cooper, Phillip. 1997. Power tools for an effective and responsible presidency. Administration & Society 29(5): 529-56.

--. 2001. Presidential memoranda and executive orders: Of patchwork quilts, trump cards, and shell games. Presidential Studies Quarterly 3(1): 126-41.

--. 2002. By order of the president: The use and abuse of executive direct action. Lawrence: University Press of Kansas.

--. 2005. George W. Bush, Edgar Allan Poe, and the use and abuse of presidential signing statements, Presidential Studies Quarterly 35(3): 515-32.

Daugherty, William J. 2004. Executive secrets and covert action. Lexington: University Press of Kentucky.

Deering, Christopher, and Forrest Maltzman. 1999. The politics of executive orders: Legislative constraints on presidential power. Political Research Quarterly 52(4): 767-83.

Falk, Stanley L. 1964. The National Security Council under Truman, Eisenhower and Kennedy. Political Science Quarterly 79(3): 403-34.

Howell, William G. 2003. Power without persuasion: The politics of direct presidential action. Princeton, NJ: Princeton University Press.

--. 2005. Unilateral powers: A brief overview. Presidential Studies Quarterly 35(3): 417-39.

Howell, William, and David Lewis. 2002. Agencies by presidential design. Journal of Politics 64(4): 1095-1114.

Howell, William G., and Kenneth R. Mayer. 2005. The last one hundred days. Presidential Studies Quarterly 35(3): 533-53.

Krause, George A., and David B. Cohen. 1997. Presidential use of executive orders, 1953-1994. American Politics Quarterly 25(October): 458-81.

Krause, George A., and Jeffrey E. Cohen. 2000. Opportunity, constraints, and the development of the institutional presidency: The case of executive order issuance, 1939-1996. Journal of Politics 62(February): 88-114.

Margolis, Lawrence. 1986. Executive agreements and presidential power in foreign policy. New York: Praeger.

Martin, Lisa L. 2005. The president and international commitments: Treaties as signaling devices. Presidential Studies Quarterly 35(3): 440-65.

Mayer, Kenneth. 1999. Executive orders and presidential power. Journal of Politics 61(2): 445-66.

--. 2001. With the stroke of a pen: Executive orders and presidential power. Princeton, NJ: Princeton University Press.

Mayer, Kenneth, and Kevin Price. 2002. Unilateral presidential powers: Significant executive orders, 1949-99. Presidential Studies Quarterly 32(2): 367-86.

Moe, Terry, and William Howell. 1999a. Unilateral action and presidential power: A theory. Presidential Studies Quarterly 29(4): 850-72.

--. 1999b. The presidential power of unilateral action. Journal of Law, Economics, and Organization 15(1): 132-79.

Ragsdale, Lynn. 1998. Vital statistics on the American presidency, Washington to Clinton, rev. ed. Washington, DC: Congressional Quarterly Press.

Relyea, Harold C. 2005a. Presidential directives: Background and overview. CRS Report 98-611 GOV, January 7.

--. 2005b. Security classification policy and procedure: E.O. 12958, as amended. CRS Report 97-771 GOV, January 7.

--. 2006. Security classification and controlled information: History, status, and emerging management issues. CRS RL 33494, June 26.

Simpson, Christopher. 1995. National security directives of the Reagan and Bush administrations. Boulder, CO: Westview Press.

U.S. General Accounting Office. 1988. Report to the chairman, Committee on Government Operations, House of Representatives. National security: The use of presidential directives to make & implement U.S. policy. GAO/NSIAD-89-31.

--. 1992. Report to the chairman, Legislation and National Security Subcommittee, Committee on Government Operations, House of Representatives. National security: The use of presidential directives to make & implement U.S. policy. GAO/NSIAD-92-72.

(1.) See Mayer (2001, Chapter 2).

(2.) United States v. Curtiss-Wright Exporting Corp., 299 U.S. 304 (1936).

(3.) United States v. Belmont, 301 U.S. 324 (1937).

(4.) United States v. Pink, 315 U.S. 203 (1942).

(5.) See Cooper (1997, 2002, 2005), Mayer (1999, 2001), Howell (2003, 2005), Martin (2005), Deering and Maltzman (1999), Howell and Lewis (2002), Krause and Cohen (1997, 2000), Mayer and Price (2002), Moe and Howell (1999a, 1999b), and Howell and Mayer (2005).

(6.) See Daugherty (2004).

(7.) See HSPD 1, October 29, 2001. Retrieved October 11, 2006, from http://www.fas.org/irp/ offdocs/nspd/hspd-1.htm.

(8.) Currently called the Government Accountability Office.

(9.) Jack Brooks (D-TX) sponsored H.R. 5092, Presidential Directives and Records Accountability Act, 100th Cong., 2d sess. (introduced July 27, 1988) and cosponsored H.R 5438, Presidential Directives and Records Accountability Act, 101st Cong., 2d sess. (introduced August 2, 1990).

(10.) See Letter, John Conyers, Jr. to Brent Scowcroft, November 4, 1991. Also see Letter, Brent Scowcroft to John Conyers, Jr., December 27, 1991, on file with author, and Jack Brooks to Frank Carlucci, March 31, 1987, U.S. House of Representatives, Hearing before a Subcommittee of the Committee on Government Operations, Presidential Directives and Records Accountability Act, 100th Cong., 2d sess., 1988, 9-10.

(11.) Peacekeeping Operations (1993); see Washington Post, June 18, 1993, A1.

(12.) U.S. Policy on Reforming Multilateral Peace Operations (May 3, 1994).

(13.) See Letter, Brent Scowcroft to John Conyers, Jr., December 27, 1991, on file with author.

(14.) For more detail on security declassification, see Relyea (2006).

(15.) See Cooper (2002) for a more detailed overview of some of these categories.

(16.) My Objectives at the Summit (November 10, 1987).

(17.) See, for example, NSAM 10 (February 6, 1961), 101 (October 6, 1961), 181 (August 23, 1962), 274 (December 20, 1963), PD 6 (March 15, 1977), 52 (October 4, 1979), NSDD 17 (January 4, 1982), 37 (May 28, 1982), 235 (August 18, 1986), and NSPD 29 (November 30, 2003).

(18.) United States Objectives and Programs for National Security, April 14, 1950.

(19.) NSDM 317 (February 23, 1976), also numbered Economic Policy Decision Memorandum 3.

(20.) NSAM 244 (May 15, 1963).

(21.) See also Clinton's PDD 34 (February 17, 1995).

(22.) For example, NSAM 290 (March 19, 1964), NSDM 87 (October 15, 1970), NSDM 270 (September 24, 1974), and NSDM 315 (January 31, 1976).

(23.) For example, NSAM 235 (April 17, 1963) and PD 25 (December 14, 1977).

(24.) For example, NSDM 165 (May 2, 1972) and NSDM 277 (October 15, 1974).

(25.) For example, NSDM 267 (August 23, 1974), NSDD 221 (April 8, 1986), and NSD 13 (June 7, 1989).

(26.) For example, PD 30 (February 17, 1978).

(27.) For example, NSDM 35 (November 25, 1969), NSDM 44 (February 20, 1970), PD 15 (June 16, 1977), NSDD 18 (January 4, 1982), and NSD 24 (September 26, 1989).

(28.) For example, NSAM 62 (July 24, 1961) and NSAM 78 (August 21, 1961).

(29.) NSDD 102 (September 5, 1983).

(30.) For example, NSDM 228 (August 8, 1973), NSDM 341 (November 24, 1976), PD 61 (October 24, 1980), NSDD 325 (January 19, 1989), NSD 78 (January 19, 1993), and NSPD 34 (May 2004).

(31.) For example, NSAM 305 (June 3, 1964), NSDM 60 (May 9, 1970), NSDM 300 (July 16, 1975), PD 51 (September 10, 1979), NSDD 9 (September 28, 1981), and NSD 72 (August 3, 1992).

(32.) For example, NSAM 190 (October 1, 1962), NSDM 243 (January 31, 1974), NSDM 280 (November 28, 1974), PD 38 (May 20, 1978), NSDD 146 (September 28, 1984), NSD 68 (May 28, 1992), and PDD 11 (July 3, 1993).

(33.) NSAM 148 (April 18, 1962), NSAM 294 (April 18, 1964), NSDM 124 (July 29, 1971), NSDM 292 (April 22, 1975), PD 47 (March 27, 1979), and NSDD 76 (January 18, 1983).

(34.) For example, NSAM 325 (March 12, 1965), NSDD 77 (January 14, 1983), and NSDD 172 (May 30, 1985).

(35.) NSDD 272 (May 7, 1987), NSDD 273 (May 7, 1987), and NSD 8 (May 1, 1989).

(36.) For example, NSDD 170 (May 18, 1985) and NSAM 63 (July 28, 1961).

(37.) For example, NSDD 116 (December 2, 1983) and NSDD 172 (May 30, 1985).

(38.) NSAM 308, Public Program to Bring to American People Accurate Reporting Re U.S. Involvement in Southeast Asia (June 22, 1964); NSAM 313, Public Comment by Officials Re SE Asia as Reported in Washington Newspapers (July 31, 1964); NSAM 325, Informational and Psychological Warfare Programs in South Vietnam (March 12, 1965); and NSAM 330, Intensified and Expanded PsyOps Activities in Vietnam (April 9, 1965).

(39.) NSAM 308, Public Program to Bring to American People Accurate Reporting Re U.S. Involvement in Southeast Asia (June 22, 1964); and NSAM 313, Public Comment by Officials Re SE Asia as Reported in Washington Newspapers (July 31, 1964).

(40.) Coordination of Foreign Information Measures (December 9, 1947).

(41.) Change in name of Special Group 5412 (June 2, 1964).

(42.) For example, NSPD 1, National Space Policy Directive and Executive Charter (November 2, 1989).

(43.) For example, NSDM 144, U.S. Arctic Policy and Arctic Policy Group (December 22, 1971); NSDD 189, National Policy on Transfer of Scientific, Technical and Engineering Information (September 21, 1985); PDD 27, Nonproliferation Science and Technology Strategy (August 1994); and PDD/NSTC 5, Guidelines for Federal Laboratory Reform (September 25, 1995).

(44.) For example, NSDM 346, Security of U.S. Telecommunications (January 18, 1977); PD 53, National Security Telecommunications Policy (November 15, 1979); NSDD 201, National Security Emergency Preparedness (NSEP) Telecommunications Funding (December 17, 1985); and NSD 42, National Policy for the Security of National Security Telecommunications and Information Systems (July 5, 1990).

(45.) For example, NSAM 166, Report on Emergency Plans and Continuity of the Government (June 25, 1962); NSAM 200, Acceleration of Civil Defense Activities (October 28, 1962); NSDM 184, U.S. Civil Defense Policy (August 14, 1972); PD 41, U.S. Civil Defense Policy (September 29, 1978); PD 58, Continuity of Government (June 30, 1980); NSDD 55, Enduring National Leadership (September 14, 1982); NSD 37, Enduring Constitutional Government (April 18, 1990); PDD 67, Enduring Constitutional Government and Continuity of Government (October 21, 1998); PDD 63, Critical Infrastructure Protection (May 22, 1998); and HSPD 7, Critical Infrastructure Identification, Prioritization, and Protection (December 17, 2003).

(46.) NSDD 93, Refugee Policy and Processing Refugees from Indochina (May 13, 1983); NSDD 138, Combating Terrorism (April 17, 1984); PDD 39, Counterterrorism Policy (June 21, 1995); NSPD 9, Defeating the Terrorist Threat to the United States (October 25, 2001); and HSPD 2, Combating Terrorism through Immigration Policies (October 29, 2001).

(47.) See http://www.fas.org.

(48.) Also excluding separate NSTCs (science and technology), NSPDs (space directives), and economic policy decision memoranda (Ford) series.

(49.) That is, whether they were issued in the first half of the year (January 20 to July 19) or the second half of the year (July 20 to January 19). The years are split by these dates to take into account the dates that new administrations take office. This seems a logical step if we are to avoid, for example, an NSD issued by Ford on January 18, 1977 being mistakenly counted as though Carter issued that particular NSD.

(50.) Clinton and Bush II are excluded due to the limited number of available NSDs. Most are not yet declassified.

(51.) What Figure 3 does not show clearly, but can be seen as one separates the data by months, is that often the number of NSDs plummets just before a presidential election followed by a rapid increase in the number of NSDs before the newly elected president takes office on January 19. For example, preceding the election of Carter in 1976, there is a drop in NSDs followed by a rapid rise by Ford at the beginning of January just before Carter assumes office. There is also a drop to zero NSDs in November 1980 and then resurgence in January 1981 just preceding Reagan taking office. There is no sudden increase in January 1989 by Reagan as Bush begins his term. Again, there is a drop in November 1992, and after Clinton wins the election, there is a rapid increase in NSDs from December until January 19, 1993.

(52.) If the declassified portions were not explicitly significant, I deemed them insignificant for the purpose of this research.

(53.) Presidential memoranda pose an increasing problem, as they are not regulated and have no publishing requirement.

Vikki Gordon is a graduate student at Oxford Brookes University. She is currently writing a doctoral thesis on unilateral action and national security policy.
TABLE 1
Sample of National Security Directives Setting or Reviewing Country
or Regional Policy

President Number Country or Region

 Soviet Union

Kennedy 271 Cooperation with the USSR on outer space
 matters
Johnson 285 Cooperation with the USSR on outer space
 matters
Nixon 151 Next steps with respect to U.S.-Soviet
 trading relationships
Ford 298 FRG (Research Reactor Geesthacht) reactor
 sale to the USSR
Carter 36 U.S.-USSR talks on conventional arms
 restraint
Reagan 75 U.S. relations with the USSR
G. H. W. Bush 23 U.S. relations with the Soviet Union

 Asia

Eisenhower 5,405 Mainland Southeast Asia
Kennedy 104 Southeast Asia
Kennedy 263 South Vietnam
Johnson 288 Implementation of South Vietnam programs
Nixon 24 Vietnam
Nixon 89 Cambodia strategy
Nixon 155 Relaxation of restrictions on trade with PRC
Ford 289 U.S. military supply policy to Pakistan and
 India
Ford 306 U.S.-Japan space cooperation
Carter 12 U.S. policy in Korea
Reagan 99 U.S. security strategy for Near East and
 South Asia
G. H. W. Bush 20 U.S. policy toward South Asia

 Middle East

Kennedy 105 Policy toward Egypt and Syria
Johnson 325 Indian nuclear weapons problem
Nixon 92 U.S. policy toward the Persian Gulf
Ford 270 Military assistance for Israel
Carter 63 Persian Gulf security framework
Reagan 103 Strategy for Lebanon
Reagan 139 Measures to improve U.S. posture and
 readiness to respond to developments
 in Iran-Iraq War
G. H. W. Bush 26 U.S. policy toward the Persian Gulf
G. H. W. Bush 45 U.S. policy in response to the Iraqi
 invasion of Kuwait

 Africa

Kennedy 33 Review of U.S. policy toward South Africa
Johnson 295 U.S. policy toward South Africa
Nixon 38 U.S. policy toward southern Africa
Nixon 47 U.S. policy toward Rhodesia
Carter 5 Southern Africa
Carter 32 Horn of Africa
Reagan 168 U.S. policy toward northern Africa
Reagan 187 U.S. policy toward South Africa
G. H. W. Bush 75 American policy toward Sub-Saharan Africa in
 the 1990s

TABLE 2
Sample of National Security Directives Concerning Space Policy

Directive President Date Title
NSAM 144 Kennedy 11/04/1962 Assignment of highest national
 priority to the APOLLO
 manned lunar landing program
NSAM 237 Kennedy 03/05/1963 Project MERCURY manned space
 flight (MA-9)
NSAM 344 Johnson 03/04/1966 Assignment of highest national
 priority to the civil
 supersonic development
 program
NSAM 354 Johnson 29/07/1966 U.S. cooperation with the
 European Launcher
 Development Organization
NSDM 187 Nixon 30/08/1972 International space
 cooperation-technology
 and launch assistance
NSDM 306 Ford 24/09/1975 U.S. Japan space cooperation
PD 33 Carter 11/05/1978 National space policy
PD 37 Carter 10/10/1978 Civil and further national
 space policy
NSDD 8 Reagan 04/07/1982 National space policy
NSDD 144 Reagan 16/08/1984 National space strategy
NSD 30 G. H. W Bush 02/11/1989 National space policy
 (National Space Policy
 Directive 1)
PDD 49 Clinton 19/09/1996 National space policy
NSPD 40 G. W. Bush 21/12/2004 U.S. space transportation
 policy
COPYRIGHT 2007 Center for the Study of the Presidency
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2007 Gale, Cengage Learning. All rights reserved.

 Reader Opinion

Title:

Comment:



 

Article Details
Printer friendly Cite/link Email Feedback
Author:Gordon, Vikki
Publication:Presidential Studies Quarterly
Geographic Code:1USA
Date:Jun 1, 2007
Words:8015
Previous Article:Elections: debating the 1976 debates: establishing a tradition of negotiations.
Next Article:Executing the Constitution: Putting the President Back into the Constitution.
Topics:

Terms of use | Copyright © 2014 Farlex, Inc. | Feedback | For webmasters