Self Restraint and National Security

Journal of National Security Law & Policy, Vol. 6, No. 1, 2012, pp. 227-289

George Mason Law & Economics Research Paper No. 10-41

64 Pages Posted: 25 Aug 2010 Last revised: 27 Aug 2012

Nathan Alexander Sales

Syracuse University College of Law

Date Written: August 24, 2010

Abstract

Why does the government sometimes tie its own hands in national security operations? This article identifies four instances in which officials believed that the applicable laws allowed them to conduct a particular military or intelligence operation but nevertheless declined to do so. For example, policymakers have barred counter-terrorism interrogators from using any technique other than the fairly innocuous methods listed in the Army Field Manual. Before 9/11, officials rejected the CIA’s plans to use targeted killings against Osama bin Laden and other terrorist leaders. Judge advocates sometimes use policy considerations to restrict military strikes that would be lawful. And in the 1990s, lawyers erected a “wall” that kept intelligence officers from sharing information with criminal investigators. The article then draws from rational choice theory to suggest two possible explanations for why the government imposes these restraints. First, self restraint might be the result of systematic risk aversion within military and intelligence agencies. Second, self restraint may be the result of empire building, as officials seek to magnify their clout by vetoing the plans of bureaucratic rivals.

Keywords: AFM, al Qaeda, Central Intelligence Agency, Convention Against Torture, cruel, DOJ, degrading, Executive Order 13491, FISA, Foreign Intelligence Surveillance Act, Geneva Convention, inhuman, interrogation, JAG, Justice Department, Uniform Code of Military Justice, waterboarding, World Trade Center

JEL Classification: H56

Suggested Citation

Sales, Nathan Alexander, Self Restraint and National Security (August 24, 2010). Journal of National Security Law & Policy, Vol. 6, No. 1, 2012, pp. 227-289; George Mason Law & Economics Research Paper No. 10-41. Available at SSRN: https://ssrn.com/abstract=1664610 or http://dx.doi.org/10.2139/ssrn.1664610

Nathan Alexander Sales (Contact Author)

Syracuse University College of Law ( email )

Syracuse, NY 13244-1030
United States

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