International Security Law
Ensuring national security requires a special approach to the legal regulation of this sphere. It seems that the key here is the concept of legal and, most of all, - the administrative-legal regime, through which the proper degree of ordering of the security system itself and its components, as well as individual processes in the field of ensuring the security of individuals, society and the state, is actually achieved.
The relationship between the elements of the triad "person-society-state," which is fundamental for defining security, undergoes an inversion when moving from the very concept of security to ensuring it. If in the concept of security, the priority belongs to the individual, then society and, finally, the state, then, in ensuring security, everything looks the other way. Here, priority belongs to the state, which coordinates the efforts of the society and the population (individual) regarding overcoming security threats.1
There is a close interdependence between development and security, since these are the two most important functions of society. These concepts have differences, since, in fact, they have the opposite direction (development requires constant expansion, renewal, innovation, and security requires stability and limitations of risky innovations), but they are equal in their activities. At the same time, development is primary and safety is secondary, but, namely, this ensures development and protects against threats. The secondary nature of security does not reduce its role in objective reality. The importance of security is explained by the fact that it actively influences the formation of directions of development in a particular sphere of life activity. Naturally, the more developed a country is in different directions, the greater is its capacity to ensure its security. Failures in development lead to a decrease in the level of security, exacerbation of old threats, and the emergence of qualitatively new ones, and vice versa, success in development expands the possibilities for ensuring security. Legally, this is reflected in the definition of national security as a state of protection of an individual, society, and the state from internal and external threats, which allows ensuring constitutional rights, freedoms, decent quality and standard of living of citizens, sovereignty, territorial integrity and sustainable development, defense and security of the state.2
At the legislative level, the system of ensuring national security is represented by a set of interrelated, internally coordinated normative legal acts containing legal principles and norms aimed at the legal regulation of social relations in the sphere of ensuring national security. Namely, the law is the cementing factor that allows consolidating the system of ensuring national security and giving it slenderness, clarity, and functional mobility.
The right plays its role and solves the tasks of ensuring national security through functions. The functions of law are commonly understood as the main directions of legal influence on public relations to streamline them, resolve them, and give them the necessary stability, unity, and dynamism. Among the functions of law in ensuring national security, we can distinguish general social and special legal functions.
The 'palette' of threats to the US national security in a historical context is constantly changing, which is reflected in the concepts of national security and relevant legislation, in particular, FISA (Foreign Intelligence Surveillance Act). The collection of inside information by the National Security Agency and the FBI for espionage and terrorism is governed by FISA. The FISA law was adopted to create a system of judicial and parliamentary control over the secret surveillance of government agencies over foreign organizations and individuals in the United States and to keep secrets of the investigation to ensure national security.3
This act allows US intelligence agencies to tacitly collect and analyze information that could potentially be important to the country's national security. Observation, searches, and other activities under various conditions can be carried out either without a warrant or on a warrant from a special court, which decides in a closed manner about the appropriate permission. This is federal law of the United States, describing the procedures for physical and electronic observation and collection of foreign intelligence information transmitted by foreign states and agents of foreign states. Agents can be both foreign and US citizens and holders of permanent residence permits suspected of espionage and terrorism. According to paragraph 702, the Attorney General and the Director of National Intelligence have the right to authorize the surveillance of non-US citizens or outside the country if they have information that is of interest to foreign intelligence.4 5 After the September 11 terrorist attacks, it was amended several times. The last time the program was extended in 2018 - the document provides for the extension of the program for six years until the end of 2023.
It should be noted that some American politicians expressed opposition to the further extension of this law, fearing that it could be used for surveillance of American citizens as well. Intelligence agencies can, without a warrant, gain access to electronic communications of US citizens.6 At the same time, representatives of the NSA deny the existence of such incidents. According to them, the agency is obliged to comply with numerous measures to protect the confidentiality of citizens according the 2008 charter. Namely, thanks to FISA, it was repeatedly possible to timely identify threats of cyber espionage, prevent cyber attacks, and disrupt the preparation of terrorist acts.7
Interestingly, historically, the first document on national security issues in world practice was the National Security Act No. 257, adopted in the USA on July 26, 1947. The Act introduced the concept of "national security" into the American legal system, and then into the legal and political discourse of other states' activities, including the lexicon and life of modern Russian and Chinese society.8
In the National Security Strategy of the Russian Federation until 2020, the national security system is understood as a combination of forces and means of ensuring national security. The Strategy itself is recognized as the basic document on planning the development of the national security system of the Russian Federation, which sets out procedures and measures to ensure national security. It is the basis for constructive interaction of state authorities, organizations, and public associations to protect the national interests of the Russian Federation and ensure the security of individuals, society, and the state.9
To date, the legal system for ensuring Russia's national security consists of more than 80 federal laws. At the national-legal level, sublevels of the federal district, the subject of the federation, and local self-government bodies can be distinguished. This approach is consistent with the provision of Art. 5 of the Federal Law of the Russian Federation On Security 2010, which presents the legal basis for ensuring security.10 The activity of the authority engaged in intelligence functions to collect external data on opponents or competitors of the Russian Federation is described by the legal provisions specified in the Foreign Intelligence Act.11 The Federal Law of January 10, 1996 N 5-ФЗ On Foreign Intelligence was submitted to the State Duma for consideration in 1995. In 1996, the document gained legislative force. The law in question was passed many years ago, and over time some of its provisions have lost relevance. In this regard, members of the State Duma periodically made changes, additions, and amendments to it, which indicates the legal significance of the law at the moment. The latest amendments in the text of the act appeared in 2016.12 Among the significant shortcomings of the Security Law 2010, there is the presence of serious gaps in regulating the interaction of federal and regional structures in the field of security, in particular, federal and regional security councils.13
The concept of security, specified in US law, differs from the analogous Russian concept by some signs. Comparison of concepts allows identifying some significant, in our opinion, differences. According to Russian legislation, security is the state of protection of the vital interests of an individual, society, and the state from internal and external threats. The main signs of security under US law are the following: security is a condition for the functioning of the state; safety is the result of defense (protective) measures; defense (protective) measures are aimed at increasing the state's invulnerability; threats are classified as internal and external; the form of manifestation of threats can be open (explicit) and subversive (hidden, disguised).
This leads to the conclusion of the goal of security. The goal is to increase the capacity of the state, its resources. With regard to the categories of "defense" and "offensive," let us note that this goal is achieved solely through the offensive. With a certain degree of conditionality, we can say that the security of the United States is the result of offensive defensive measures. The purpose of ensuring security under Russian law is to retain safety indicators within certain limits. This goal is the restoration of potential, violated rights, and resources. The domestic security mechanism comes into effect only after the occurrence of adverse factors. In US regulations, it is stipulated that security is achieved through "holding events." Russian legislation indicates that security is achieved through "protection." In our opinion, the legislative consolidation of the need for "holding events" is much more effective than anonymous and indefinite "protection," since it creates prerequisites for concrete further planning, identifying structures responsible for their implementation, and developing clear forms and methods for implementation. US law points to the need to counter threats that are not explicitly expressed. Probably, we are talking about the widespread use of preventive measures in relation to obvious threats and the possibility of involving state bodies providing security to counteract manifestations of the external environment that fall under the definition of "subversive" (hidden, implicit).14
1 Geoffrey Corn et al., National Security Law: Principles and Policy (Wolters Kluwer Law & Business, 2015).
2 Donald Show, Thinking About National Security (Routledge, 2015).
3 Elizabeth B. Bazan, The Foreign Intelligence Surveillance Act: Overview and Modification (Nova Science Pub Inc., 2008).
4 Stephen Dycus, et al. National Security Law and Counterterrorism Law: 2017-2018 Supplement (Wolters Kluwer, 2017).
5 Brett J. Wills, The Foreign Intelligence Surveillance ACT & Its Ramifications (Nova Science Pub Inc., 2010).
6 Mythili Sampathkumar, "Surveillance Act, are there any privacy issues and when will Trump sign it?"Independent, 19 January (2-18). https://www.independent.co.uk/news/world/americas/us-politics/fisa-what-is-foreign-intelligence-surveillance-act-are-privacy-issues-when-donald-trump-sign-a8168716.html
8 Mika Aatola, et al. " The security strategies of the US, China, Russia, and the EU: Living in different worlds."FIIA, Report 56, 2018.
9 Licinia Simao, "(In)security in Post-Soviet Eurasia: Contributions from Critical Security Studies,"Artigos, No. 19 (2013): 27-45.
10 Donald Show, Thinking About National Security
11 Sophia Dimitrakopoulou and Andrew Liaropoulos, "Russia’s National Security Strategy to 2020: A Great Power in the Making?"Caucasian Review of International Affairs, Vol. 4 (1) (2010): 35-41.
12 Mika Aatola, et al. " The security strategies of the US, China, Russia, and the EU"
13 Sophia Dimitrakopoulou and Andrew Liaropoulos, "Russia’s National Security Strategy to 2020"
14 Stephen Dycus, et al. National Security Law and Counterterrorism Law