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We are headed for our first wartime Presidential transition in forty years. The good news is that this has prompted uncommon attention to the process of transition. The bad news is that transitions are difficult in the best of circumstances; forewarned does not always equal prepared. The United States handles transitions well on a strategic level. Strategic continuity is found in the Constitution. Transition is also part of the rhythm of government. The intelligence community, for example, has a sound tradition of briefing candidates and Presidents-elect. However, there is tactical vulnerability. An outgoing administration may hesitate to initiate all but the essential acts of force or to make policy commitments. Alternatively, an administration on its last legs runs the risk that policy initiatives will be short-lived, or that relevant actors will wait the administration out. An incoming administration may not have developed its policy framework or crisis templates; campaign rhetoric may not have adjusted to ground truth and the nuance of governance.

There is procedural vulnerability as well. When a new administration comes into the White House there is little in the way of guidance. In many cases, safes are literally empty. Phone lists do not exist; sometimes, phones do not either. Most importantly, personnel may not be in place. This is evident with respect to officials subject to Senate confirmation. It is also true at intermediate levels of government where facts are gathered, intelligence analyzed, and policy choices framed. The Standing Committee on Law and National Security asked how might an incoming administration get a running start in the areas of national security law and Presidential process? In the following pages I offer some suggestions that might help the next team get a running start and mitigate transitional risks.

Publication Citation

30 A.B.A. Nat’l Sec. L. Rep. (2008)