Published by The Lawfare Institute
in Cooperation With
On Feb. 4, President Biden signed National Security Memorandum 2 (NSM-2), which specifies the organization and membership for his national security decision-making system. The overall structure of the Biden National Security Council (NSC) system is similar to that of his Democratic and Republican predecessors in that it provides for a National Security Council, a Principals Committee, a Deputies Committee and interagency policy coordination committees. But Biden’s plans make some new and notable changes that reflect the Biden administration’s focus on science, global engagement, cybersecurity and rule of law. Here’s what’s new or different:
1. An “N,” not a “P” Order. Every president since Truman has issued a series of executive orders or memoranda on national security issues, some classified and some unclassified. In recent years, Republican presidents have historically titled their national security orders with descriptors beginning with “N” (NSPMs, NSPDs, NSDDs, NSDs), while Democratic presidential orders have generally started with a “P” (PPDs, PDDs, PDs). Is Biden sending a signal by breaking with Democratic tradition? Is he signaling bipartisanship in national security decision-making, or simply that the decisions are “national security” decisions, not merely “presidential” decisions?
2. Rebuilding Better. Presidential directives defining the structure of the NSC system have traditionally been entitled “Organization of the National Security Council System.” The title of Biden’s order—“Renewing the National Security System”—reflects political messaging that his national security system will differ from his predecessor’s.
3. New NSC Members. In addition to the statutory members of the NSC specified in the National Security Act (the president, vice president, and secretaries of State, Defense, Treasury, and Energy, with the director of national intelligence and the chairman of the Joint Chiefs of Staff as statutory advisers), every president specifies additional nonstatutory members. In recent years, these additional members have included the attorney general, the secretary of homeland security, and senior members of the White House staff, including the national security adviser and the chief of staff. Biden’s NSC will include the ambassador to the United Nations, the director of the Office of Science and Technology Policy (OSTP) and the administrator of the U.S. Agency for International Development (USAID) as regular members, with the CIA director as an additional adviser. Presidents Obama and Trump had included their U.N. ambassadors as NSC members, but this will be the first time a president has included the OSTP director and USAID administrator. (It’s worth noting that Biden’s choice to serve as USAID administrator, Samantha Power, served on Obama’s NSC when she was U.N. ambassador.) These choices presumably reflect the Biden administration’s renewed emphasis on science and global engagement. Obama had not specified his CIA director as a regular adviser to his NSC, although his CIA directors attended many NSC meetings. Given Biden’s choice for CIA director—William Burns, an experienced diplomat who served as deputy secretary and under secretary of state in the Obama administration and previously as ambassador to Russia—it’s not surprising that Biden will want him in the Situation Room. Burns and Director of National Intelligence Avril Haines will need to work out rules of the road to determine who provides “advice” on which intelligence issues. All of these NSC regular members and advisers, except the OSTP director, will also be members of (or advisers to) the Principals Committee (PC), and their deputies will be members or advisers to the Deputies Committee (DC). It appears that Biden decided that it would be an important statement about the role of science and scientific facts in his administration to include the OSTP director as a regular “member” of the NSC (which the president himself chairs), while recognizing that in practice the OSTP director (and his deputy) will attend PC and DC meetings only as needed, “depending on the issue.”
4. New Regular Attendees. In addition to the statutory and regular members of the NSC and PC, an initial presidential national security structure directive typically lists other agency and White House officials who may be invited to attend NSC (and PC and DC) meetings. NSM-2 lists a number of additional attendees who have been invited in previous administrations (such as the secretary of commerce, U.S. trade representative, and director of the Office of Management and Budget) but also lists numerous new attendees who may be included “as appropriate” or “depending on the issue” in Biden administration NSC, PC and DC meetings. These additional attendees include the administrator of the Environmental Protection Agency, the secretaries of labor and health and human services, the national cyber director, the deputy national security adviser for cybersecurity, the COVID-19 response coordinator and the special presidential envoy for climate. (Contrary to some prior media reports, it does not appear that the climate envoy, John Kerry, will be a regular member of the NSC and invited to every NSC meeting.) These additional attendees reflect the Biden administration’s focus on domestic economic and health, environmental and cybersecurity issues as part of national security. Unlike Trump’s initial NSC, which included Steve Bannon (who was later removed), Biden’s NSC will not include White House officials with purely political portfolios as members or regular attendees. Still, if all of Biden’s NSC members and regular attendees attend NSC (or PC or DC) meetings, the meetings have the potential to become unwieldy, with more than 20 officials (and more than 40, if “plus ones” are invited) in the room.
5. NSC Legal Adviser. Presumably in recognition of the significance of legal issues in most national security decisions, NSM-2 specifies that not only the counsel to the president but also the NSC legal adviser (a position I held in the first term of the George W. Bush administration) shall be invited to attend every NSC and PC meeting. Even more significant, the NSC legal adviser will be a “member” of the DC. In contrast, President Obama’s PPD-1 invited the counsel to the president to every NSC meeting but specified no formal role for the NSC legal adviser. President Trump’s NSPM-2 had invited the NSC legal adviser to all NSC, PC and DC meetings. Attending all of these meetings, and chairing interagency legal meetings, will keep the NSC legal adviser, Jonathan Cedarbaum, busy.
6. Homeland Security Issues. Trump’s NSPM-2 addressed the organization of both the National Security Council and the Homeland Security Council. But Biden’s NSM-2 does not address the organization of the latter, which was created by George W. Bush in Executive Order 13228. It’s not clear whether Biden will issue a separate directive governing homeland security issues, or whether these issues will simply be subsumed in the NSC system. NSM-2 states that when homeland security issues are on the agenda of a PC or DC meeting, the homeland security adviser may chair the meeting.