The Constitution and the NSC

Steve Bannon Head ShotThe National Security Council is a Cabinet-level body formed in 1947 under President Truman to integrate the nation’s domestic, foreign and military policies and advise the president on national security matters. By statute, political operatives are not included as NSC members.

Last week, Steve Bannon, the controversial top White House political operative and Chief Strategist to the President, was appointed to the very powerful NSC. However, under the National Security Act, Bannon isn’t eligible to serve on the NSC, let alone be subject to Senate approval as some have suggested.

By comparison, David Axelrod, Barack Obama’s political advisor, was not a member. According to Axelrod, he attended occasionally but did not speak. Karl Rove, George W. Bush top political advisor, reportedly was barred from even attending NSC meetings in order to avoid the appearance of political influence or impropriety.

The Law:  Under the statute, the NSC is limited to three categories of the nation’s very top civilian elected, cabinet and military officials, 50 U.S.C. Sec. 3021,* states:

Statutory Members. Under the statute, the NSC “shall be composed of” the President, the Vice President, the Secretary of Defense and the Secretary of Energy [nuclear weapons and power].

Advice and Consent Members. The statute also allows the President to appoint, “subject to the advice and consent of the Senate,” Secretaries and Under Secretaries” of other Cabinet-level departments, e.g., Homeland Security, and the military departments, e.g., Secretaries of the Army, Navy and Air Force (all civilians), to the NSC.

Attend and Participate Members. Below the Cabinet level and at a lesser “attend and participate” level, the statute includes the Chairman of the Joint Chiefs of Staff, the Director of National Intelligence, the Coordinator the Prevention of Weapons of Mass Destruction Proliferation and Terrorism and the Director of National Drug Control Policy. They may “attend and participate” in NSC meetings, but “at the president’s discretion.” They are statutory “attendees,” not members.

That’s it. No more. Nada. No presidential political advisors as members. No Steve Bannon. No David Axelrod. No Karl Rove.

While past presidential orders have described NSC players as either “members” and “attendees,” the new NSC announcement** the boundaries and generally describes all players as “attendees.” Eighteen “regular attendees” include the “statutory attendees” (President and listed Cabinet Secretaries) as well as “non-statutory attendees” not listed in the statute. The latter include the Secretaries of Treasury and Homeland Security and the Attorney General (who otherwise it seems would require Senate advice and consent); the UN Ambassador, the National Security Advisor (Flynn), the Chief of Staff (Priebus) and the Chief Strategist (Bannon).

In addition, since George H. W. Bush, presidents have designated a more select NSC Cabinet-level “Principals Committee.” The new Principals Committee is the pretty much the same as the “regular attendees” for the NSC, including Bannon. The Chairman of the Joint Chiefs of Staff and the Director of National Intelligence are included when their areas of responsibility are being discussed.

The legal difference between the official members of the NSC (determined by statute) and the Principals Committee (determined by presidential practice and preference) is unclear and does not seem to have been a problem Bannon was appointed to both eh NSC and the Principals Committee.

Does it really make a difference? Whether Bannon is treated as a member, an advisor or an attendee, as a practical matter he will be in the national security loop every day, almost “a [political] heartbeat away” in  a very real sense.

Perhaps more important, however, to many Americans the traditional expectation and structure separating national security from political agendas has taken a pretty big hit.

Author: Dan Cofran

I am a lawyer. After 40 years experience in corporate and commercial litigation and transactions, I now limit my practice to Business Dispute Mediation. I have a life long interest in politics, having served as an city councilman for eight years in the 1980s and 1990s. I focus my legal readings on the U. S. Constitution and its history.

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