2012-2013 Presidential Election Period: National Security Considerations and Options
Released: 2012-10-05T00:00:00

Summary:
A presidential election period is a unique time in America and holds the promise of opportunity, as well as a possible risk to the nation's security interests. While possible changes in Administration during U.S. involvement in national security-related activities are not unique to the 2012-2013 election period, many observers suggest that the current security environment may portend a time of increased risk to the current presidential election period. Whether the enemies of the United States choose to undertake action that may harm the nation's security interests during the 2012-2013 election period, or the existing or new President experiences a relatively peaceful period during the transition, many foreign policy and security challenges will await the Administration. Collaboration and coordination during the presidential election period between the current Administration and that of a potentially new one may have a long-lasting effect on the new President's ability to effectively safeguard U.S. interests and may affect the legacy of the outgoing President.
This report discusses historical national security-related presidential transition activities, provides a representative sampling of national security issues a new Administration may encounter, and offers considerations and options relevant to each of the five phases of the presidential election period. Each phase has distinct challenges and opportunities for the incoming Administration, the outgoing Administration, and Congress. This report is intended to provide a framework for national security considerations during the current election period and will be updated to reflect the election outcome.

subsections: section_title: Introduction
paragraphs: Security-related implications are of concern in the lead-up to a Presidential election. These concerns are present when it is known there will be a change of Administration or in cases where the sitting president is running for reelection against an opponent vying for the office. A prospective presidential transition period—ranging from candidate's campaign-related activities through placement of new Administration personnel—is a unique time in American politics and holds the promise of opportunity as well as a real or perceived vulnerability to the nation's security interests. On a given day the outgoing Administration has the ability to change the policies of a nation and possibly affect the international security environment, yet the following day the President and the national security leadership team may be replaced by a new set of leaders who could have very different strategy and policy goals. This political dynamic, coupled with the inherent uncertainty accompanying a presidential transfer of power, may provide an opportunity for those who wish to harm U.S. security interests. Unlike other man-made incidents that may occur with little warning, the presidential election period offers a broadly defined time frame in which an enemy of the United States may decide to undertake an incident of national security significance to manipulate the electoral process or change the nation's foreign and domestic policies.
Presidential transitions during times of global uncertainty, U.S. involvement in military operations, and risks to national security-related activities are not unique to the 2012-2013 presidential election period (see Appendix A ). History shows that some state enemies purposefully select periods of government transition to undertake significant acts of violence with a desire to disrupt a peaceful transfer of power (see Appendix B ). While the mere occasion of presidential transition does not ensure an incident of national security significance will occur, security experts argue that this window of potential opportunity is not lost on the enemies of the United States. For example, according to a 2008 presidential transition-related report provided to the Department of Homeland Security (DHS) by the Homeland Security Advisory Committee (HSAC), "briefings, research, and recent history have provided an appreciation of the potential vulnerabilities during transition periods. Not only are we [United States] aware that vulnerabilities exist, but our enemies are as well." While no claims of attempting to influence the United States presidential election have been offered as a factor in the September 11, 2012, terrorist attacks on the U.S. consulate in Benghazi, Libya, incidences such as this could have policy implications during the transition period.
The executive branch is not alone in attempting to ensure the country passes power from one Administration to the next in a safe and thoughtful manner. However, the outgoing and incoming Administrations are viewed as primarily responsible for addressing risks to the nation and taking actions to prevent and respond to any incident that may affect the electoral process. Whether the enemies of the United States choose to undertake action that may harm national security interests during this prospective period of transition or the new President experiences a relative peaceful period shortly after entering office, many national security issues will be awaiting a new Administration. How a newly elected president recognizes and responds to these challenges will "depend heavily upon the planning and learning that takes place during the transition from one Administration to another." During recent presidential transitions, the current and incoming Administrations and Congress have traditionally undertaken numerous activities to facilitate a smooth transfer of executive branch power. Some of the actions taken during a presidential transition period include
consulting with government and private sector experts who have presidential transition expertise, providing information to the President-elect after the election and prior to the inauguration, offering operational briefings on ongoing national security matters to prospective presidential nominees and their staff, preparing briefings books and policy memos detailing the issues of most concern to the current Administration, and expediting security clearances for president-elect transition team members.
Other activities that the current and incoming Administrations and Congress may wish to consider undertaking during the presidential transition period include
pursuing public outreach efforts to discuss possible risks to the nation, involving the national security representatives of presidential candidates in all transition-related discussions, establishing joint advisory councils responsible for addressing all transition-related risks, requiring the Director of National Intelligence (DNI) to undertake efforts to support the nation's awareness of risks, reflecting the national security priorities of the newly elected Administration in the upcoming budget, passing fiscal year appropriations without undue delay, quickly assigning newly elected and existing Members of Congress to committees focused on national security, holding hearings comprised of national security experts to gather ideas on prospective U.S. national security policies and goals, and holding hearings soon after the inauguration of the new President to determine the Administration's national security-related priorities.
section_title: The Presidential Election Period
paragraphs: From a national security perspective, the presidential election period runs from the formal announcement of candidates for the office of the presidency to long past the inauguration, members of the current Administration and potential incoming Administration may wish to initiate substantive transition activities as soon as possible. Specifically, some scholars state that "enhanced cooperation and communication between the two Administrations is demanded by national security and foreign policy concerns." It is further observed that, "as the world becomes more dangerous and the risks to harm more immediate, the need for effective and seamless transitions becomes correspondingly greater." Thus, with respect to national security issues in particular, the need for outgoing and incoming Presidents to work together is no longer an option, but an unavoidable demand of the contemporary world.
subsections: section_title: Considerations and Options that Span the PresidentialElection Period
paragraphs: Throughout the entire presidential election period, a number of national security-related concerns and opportunities may be presented to the incoming and outgoing Administrations. However, many observers argue that the national security-related collaborative efforts of the current Administration and members of the potential new Administration, coupled with oversight activities throughout the transition period, offer the nation the best hope of being prepared to recognize and respond to acts taken to disrupt the transfer of power or change U.S. policies. In order to assess the federal governments actions related to the following issues, Congress may wish to hold classified and unclassified hearings and request reports regarding the Administration's knowledge of risks during the Presidential election period and ascertain information about the efforts by departments and agencies to ensure all applicable security and election officials are informed of potential concerns.
subsections: section_title: Possible Actions by Entities Wishing to Disrupt the PresidentialElection Period
paragraphs: Threats during a presidential election period may be numerous with "dangers associated with the transition emanating both from within the homeland and internationally." It is argued that enemies of the United States may see the nation as physically and politically vulnerable and that disseminating threatening propaganda or undertaking an incident of national security significance during the election period could potentially result in a change in the election results or future policies. Statements or incidents may be undertaken with the desire to demonstrate a group's ability to reestablish its status as an entity to be feared, intimidate the voting public, suggest perceived weaknesses in a candidate's national security experience, change the results of the election, or change future U.S. policies.
Many national security observers speculate that, if an incident of national security significance is to occur, enemies of the United States may prefer to take action just prior to the presidential election date. However, such acts at anytime during the presidential transition period could have desired and unintended effects on the presidential election and resulting policies. Conversely, while many national security experts speculate that extremist groups and some foreign powers may see the presidential election period as a desirable time to undertake action against U.S. interests, the timing of such acts may be solely based on the convergence of an entity attaining a desired capability with a perceived best opportunity to successfully complete its objective.
section_title: Planning for the Unforeseen and Communicating Transition-Related Information to the Public
paragraphs: During previous presidential elections, some officials in the federal government have seen the need to develop options that might be pursued should the presidential election be delayed. While noting federal election dates are set by law requiring congressional action to change the current schedule, DeForest Soaries, former Chair of the United States Election Assistance Commission, wrote to then-Department of Homeland Security (DHS) Secretary Tom Ridge on June 25, 2004, that the process and procedures for changing election dates vary significantly across the nation's 8,000 voting jurisdictions. Chair Soaries suggested that the DHS and the federal interagency structure collaborate with state and local governments on a plan to address voting options, should a terrorist attack occur around the time of the election. Many security experts argue that federal, state, and local election-contingency planning and coordination should occur during the early phases of the election period. It is further suggested that, in the absence of such discussions, the issuance of general guidelines, or a genuine effort toward collaboration, the prospects for electoral chaos are more likely to occur if an incident of national security significance takes place just before or on the date of election.
During all phases of the presidential transition process, many security experts suspect the federal government will receive information of concern to U.S. national security interests. Should such a heightened risk environment occur, observers suggest that one of the best ways to meet this challenge is by a showing of national unity among the outgoing Administration and individuals vying for the presidency. To support a collaborative environment, the 2008 Homeland Security Advisory Council report suggested the nominees issue a joint statement addressing potential threats to the nation or in response to an incident of national significance. Some foreign policy experts suggest joint statements and activities by the current President and the prospective President-elect take place with regularity to put forth a common voice to both the American public and the enemies of the United States that security issues will be addressed in a unified and coordinated manner.
Throughout the presidential transition period the federal government may wish to undertake outreach and education efforts directed at the American public. A public awareness campaign discussing a need for citizens to be more-vigilant during the election period and providing insight into what the federal government will do in the event of an incident prior to election day may provide confidence to a concerned voting public. Activities such as this may prove useful in preparing the public for the possibility of an incident of national security significance occurring during the presidential transition period. With respect to security-related issues in the homeland, many observers argue that public awareness offers the best opportunity to provide indicators of anomalies that might be indicative of a group's preparation to undertake criminal activity to affect the presidential election process. To this degree, the DHS HSAC contends that continuous interaction with the media and the public on potential threats during this time period will improve the preparedness of the nation for an incident of national security significance. The DHS HSAC report specifically opined:
It is important that the American public become engaged in understanding the unique vulnerabilities posed by this transition period. This will require public education and media engagement during this critical period in our history. Before, during, and after the transition, the public must learn about the choices faced by the Nation, communities, families, and individuals. The public must become a partner with their government, sharing the burden. In addition, [the] DHS should continue to engage the media as an ally in the timely dissemination of accurate and actionable information. [The] DHS must work with the multiple messengers, trusted within diverse communities, to effectively communicate this information.
The DHS has the responsibility to notify the American public of current or prospective threats to U.S. domestic security interests, and the Department of State has the responsibility to alert U.S. citizens located overseas of security-related concerns. Both organizations have numerous communication mechanisms to inform U.S. citizens and organizations regarding concerns related to the presidential transition period and, when required, to share threat information. Communication mechanisms for conveying information about the presidential transition period include the following:
DHS: Official public announcements to the media, public service announcements, changes to the Homeland Security Advisory System, dissemination of information to state and local fusion centers and to private sector organizations, and posting information to DHS-managed websites. Department of State: Official public announcements to the media, warden system alerts, travel alerts, country specific warnings, country background notes, and posting information to State Department managed websites.
section_title: Considerations and Options Unique to Each Phase of the Presidential Transition Period
paragraphs: Modern presidential transition activities are no longer constrained to the time between election day and the inauguration. Some presidential historians argue that, "history tells us that any winning candidate who has not started (transition efforts) at least six months before the election will be woefully behind come the day after the election day." While the time period and phases of a presidential transition are not statutorily derived, for purposes of this paper, the presidential transition period is comprised of five phases extending from presidential campaigning activities to the new President's establishment of a national security team and accompanying strategies and policies. Each phase identifies issues to consider by the outgoing and incoming Administrations and the Congress. The phases of the presidential transition are as follows:
Phase 1: Campaigning by presidential candidates.
Phase 2: Selection of party nominees.
Phase 3: Election day.
Phase 4: Post election day to prior to the inauguration.
Phase 5: Presidential inauguration to formation of the new Administration's national security team and issuance of policy directives.
subsections: section_title: Phase 1: Campaigning by Presidential Candidates
paragraphs: Phase 1 of the presidential transition includes the time frame from campaigning by presidential hopefuls to the national political conventions that officially select the party nominee. This period can last a few months to a year or longer depending on a number of factors, including the current President's desires and constitutional ability to run for reelection, the plans of individuals from the same party as that of the sitting President to challenge the President's reelection bid, and the opposing party's time frame for launching unofficial or official presidential nomination activities.
subsections: section_title: Prospective Outgoing Administration Considerations and Options
paragraphs: A number of activities can occur during the first phase of presidential transition activities that would benefit the incoming President and may prove useful toward providing continuity with respect to U.S. national security matters. As noted in the 2008 HSAC report, "it is important that [the] DHS take action now to ensure a seamless and agile transition to new leadership and optimize the new leadership's ability to assume operational control of the Department." Recommendations offered by the Advisory Council that could be undertaken during the first phase of the transition include
clarifying the meaning of "heightened threat" during the transition period by notifying all homeland security partners of historical patterns; developing contingency plans around the homeland security themes of prevent, prepare, respond, and recover; providing prospective presidential nominees information regarding lessons learned from incidents occurring during previous leadership transitions; and offering operational briefings on ongoing national security matters to prospective presidential nominees and their staff.
The current Administration may wish to consider initiating information exchanges and collaborative efforts with the opposing party candidate in this initial phase of the transition. Generally, as the campaign for President progresses through the spring and leads to the presidential conventions, relatively few candidates will emerge as viable contenders for gaining the nomination of a given political party. The current Administration could bring this relatively limited number of individuals, and their designated senior national security staff, into briefings and discussions regarding national security issues that will likely be of concern in the following year.
An issue of concern to some presidential transition observers is the turnover of personnel occupying key positions in the federal government. There are more than 7,000 federal government leadership, management, and support positions that are non-competitively filled by political appointees. Some observers suggest that many of these positions have, as part of their primary function, national security responsibilities. Should large numbers of political appointees depart in the months preceding the inauguration, the federal government would likely rely on Senior Executive Service personnel, Senior Foreign Service diplomats, senior military officers, and senior general-schedule employees for continuity of operations, leadership, and management of most national security-related activities. While the occupation of senior policy positions by career government employees may not necessarily be a problem, a number of considerations arise in such an environment.
Appointing career civil servants to mid- to high-level positions in federal departments and agencies has been offered by national security observers as a way to provide continuity during presidential transitions. This action may allow agencies to operate without interruption and provide the future congressionally confirmed or presidentially appointed agency directors with in-house expertise and historical context about the organization. As a proponent of converting some of the federal government's national security leadership positions to career civil service positions, former DHS Acting Deputy Secretary Schneider noted "it's important to realize that major terrorist attacks, both here and abroad, are often launched shortly before or after national elections or inaugurations. By promoting dedicated civil servants who've proven their mettle, we're not only building for the future, but are helping ensure that during the transition, as the perceived weakness grows, our Department is prepared." While the promotion of civil servants into federal agency deputy positions is welcomed by many national security observers, others are concerned with the selection process that supports this activity. Some security observers may be concerned that the individuals chosen for these positions are being selected by the current Administration's political leadership and that this may be a way for individuals with like-minded political philosophies to maintain control over an agency and pursue policies that are counter to a new Administration.
section_title: Possible Role of National Security Staff and the Homeland Security Council
paragraphs: The National Security Staff (NSS) is the President's principal forum for considering national security and foreign policy matters with senior national security advisors and cabinet officials, whereas as the Homeland Security Council's (HSC) purpose is to ensure coordination of all homeland security-related activities among executive departments and agencies, and to promote the effective development and implementation of all homeland security policies. The current Administration might consider temporarily establishing a joint advisory council that draws on the expertise and experience of both the NSS and HSC to assist with transition issues. This new body could be comprised of political and career staff from the NSS and HSC, outside experts with transition expertise, and members of a prospective president-elects national security team. Organizational responsibilities could include coordinating the presidential transition policies of agencies having national security missions. In assisting the transition process, the entity could attempt to ensure presidential transition period activities are coordinated in an interagency manner and are cognizant of the effects current efforts may have on a new Administration. If so desired by the President-elect, this organization could continue for a period of time into the next Administration. The council could have responsibility for advising the outgoing and incoming Presidents on possible policy implications of national security decisions made and actions taken during all phases of the presidential transition.
section_title: Office of the Director of National Intelligence
paragraphs: The Office of the Director of National Intelligence (ODNI) is responsible for assessing and reporting on risks to the nation and has many organizations that directly or indirectly provide analytical and operational support to the President and senior members of the national security community. The following options are activities that the DNI could undertake to facilitate the federal government's understanding and ability to respond to risks during the 2012-2013 presidential transition.
Require the National Intelligence Council (NIC) to lead an analytic effort to assess risk to U.S. interests during the presidential transition period. This effort could result in the issuance of a classified and unclassified National Intelligence Estimate discussing the intelligence aspects of the upcoming transition. Establish a Presidential Transition Mission Manager to lead and coordinate all federal intelligence and law enforcement analytic efforts. Enhance the National Counterterrorism Center's (NCTC) ability to receive and assess threat information directly related to the election period. Ensure the DHS' Office of Intelligence and Analysis receives relevant threat information in a timely manner to facilitate sharing activities with domestic federal, state, local, tribal, and private sector organizations. Enhance the Interagency Threat Assessment Coordination Group's ability to coordinate and report federal and local threat information that may be related to the presidential transition. Provide the nation's state fusion centers information and specific indicators of suspicious activity that may portend possible risks associated with the presidential transition.
section_title: Incoming Administration Considerations and Options
paragraphs: During phase 1 of the transition, the presidential candidates and their assembled national security teams may attempt to ascertain the current Administration's national security policies and activities and collaborate with it on issues that may affect the prospective presidency. The 2008 HSAC report proposed that the following issue areas be addressed during the transition: threats, leadership, congressional oversight, policy, operations, succession, and training. While many national security observers found the report to be useful for addressing transition-related issues for the DHS, others argue that the report fell short of addressing a government-wide approach to risks and responses during the election period. Specifically, some national security observers argued that the options put forth were too narrow in scope and found the report lacking in the following areas:
Too much focus on outgoing Administration efforts, and too little attention given to the activities related to preparing the incoming Administration for the challenges it will likely face. Too much emphasis on the administrative process of transitioning to a new Administration, rather than ensuring incoming Administration employees are cognizant of current and projected substantive homeland security issues likely to be faced during the first year of the Presidency. No discussion of how state, local, tribal, and private sector leaders with homeland security responsibilities should prepare for activities related to the upcoming presidential Administration transition. Little detail provided on how training, education, and exercise activities can be used to prepare incoming Administration officials with national security responsibilities to be better prepared to meet current and future challenges.
section_title: Congressional Considerations and Options
paragraphs: Some national security observers see congressional interest in and support of presidential transitions as a crucial aspect of orderly transfers of power in the executive branch. Others argue that Congress should confine its activities to simply providing the funds necessary to support the transfer of presidential authority and act quickly to confirm the President-elect's nominated senior leadership. Regardless of the level of involvement in the presidential transition desired by the incoming and outgoing Administrations, congressional leaders may wish to pursue an active role in overseeing transition-related implementation efforts. Some suggest that without early and substantive congressional involvement in presidential transition activities foreign and domestic security risks may not be addressed in as full a manner as possible.
Possible Congressional Activity . During phase 1, congressional support and inquiry may include
appropriating resources to support outgoing and incoming national security collaboration efforts, holding classified and unclassified hearings and meetings with the both the incoming and outgoing Administrations to ascertain current transition activities, submitting questions to the outgoing Administration to ascertain transition planning activities and the known and projected risks during the transition period, and providing a sense of the Congress resolution that notes the importance of effective and collaborative activities between the departing Administration and the incoming Administration.
Congress may also wish for the current Administration to provide
the names of agency leaders responsible for making national security-related decisions during the presidential transition period, briefings on the possible risks to the presidential transition process, information about the significant national security operations that will be ongoing during the transfer of power, and briefing about the Administration's efforts to engage and collaborate with prospective new Administration senior security officials.
An area of congressional interest in the past is the departure of knowledgeable political appointees and career managers during a presidential transition that may significantly hamper the federal government's ability to prevent and respond to issues of national security importance. Former Chair Thompson of the House Homeland Security Committee noted that vacancies at the DHS were "an enormous security vulnerability should an attack occur during the upcoming presidential transition." Early in the presidential transition period, Congress may choose to determine the executive branch departments and agencies with national security responsibilities, review the projected leadership succession plan, and obtain the names of the individuals who have the authority to undertake action in the event an incident occurs during the transfer of power.
section_title: Phase 2: Selection of Party Nominee
paragraphs: Phase 2 of the presidential transition includes the time frame from the selection of individuals at the two major political party presidential nominating conventions to the day of the presidential election. This phase will last a few months as the political party conventions usually occur in the summer preceding the November election.
subsections: section_title: Outgoing Administration Considerations and Options
paragraphs: Many national security experts suggest that phase two may be the time when the specter of increased risks to the nation is heightened. Officials at all levels of government may become concerned about national security interests being affected during the time leading up to election day. It is possible that the current Administration may consider undertaking military or law enforcement-related actions during this time to prevent a group from disrupting the election or threatening national security interests. Such actions, while possibly needed to safeguard the nation's security interest, are often the source of frustration as some question the veracity of the threat information and the need for related preventative actions. Some see these activities as pursued purely for political purposes. Others have argued that the current national security leaders are placed in an unenviable position of trying to protect national security interests during times of heightened political skepticism.
With the field of potential presidential candidates likely reduced to two major party candidates, the outgoing Administration may wish to consider continuing the historical pattern of routinely providing presidential nominees and their senior staff information and briefings on matters of national security. Scholars who follow matters of national security note that, "in the pre-election period, it has proved feasible and desirable to provide intelligence briefings to candidates from both or even multiple political parties. For the most part this has been done and it should certainly be continued."
section_title: Incoming Administration Considerations and Options
paragraphs: Section 7601 (c)(2) of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA ( P.L. 108-458 ; 50 U.S.C. 435b)) allows each major party candidate for President to submit, before the date of the general election, requests for security clearances of prospective transition team members who will require access to classified information to carry out their responsibilities as a member of the President-elect's transition team. The act further states that, to the fullest extent practicable, necessary background investigations and eligibility determinations of prospective transition team members shall be completed by the day after the date of the general election. During phase 2 of presidential transition activities, the prospective President and staff will likely undertake efforts to fully understand current U.S. national security policies and related operational activities, and may request meetings with current Administration security officials. Expedited completion of security clearance reviews for relevant personnel would greatly assist these efforts.
section_title: Congressional Considerations and Options
paragraphs: During phase 2 of the federal transfer of executive branch power, Congress may desire to hold hearings assessing transition-related plans, and provide resources to federal and non-federal security entities to facilitate the transition efforts, effectuate incident deterring activities, and shore up programs that may be required to respond to an incident.
Support to Non-Federal Entities with Security Responsibilities . Some national security observers are concerned that a lack of sufficient coordination and planning between federal and state security entities could affect the presidential electoral results should an incident of national security significance occur prior to or on election day. In addition to providing funds to the prospective incoming and outgoing Administrations to support transition related activities, including national security-related support provided by departments and agencies, Congress may wish to provide resources to non-federal entities responsible for safeguarding the homeland during the presidential transition. Just as all homeland security-related incidences occur at the community level, local first responders will initially be responsible for addressing and mitigating any ongoing security concerns. Whether it's a man-made incident or natural disaster, some scholars state that all levels of government may wish to consider the constitutional and practical options associated with a domestic security incident occurring just prior to or on the day of election. Should such an incident occur, greater burden would be placed on local homeland security entities to support federal election-related activities.
section_title: Phase 3: Election Day
paragraphs: Phase 3 of the presidential transition is the day of the presidential election.
subsections: section_title: Outgoing Administration Considerations and Options
paragraphs: Consistent with the opportunities for public outreach efforts noted in phase 2, senior federal government leaders may wish to address risks to the homeland on the day of election. In addressing any known or possible threats, senior federal officials might offer that citizen involvement in the democratic process is an effective way to demonstrate to those who wish to harm the nation that acts of intimidation will not affect the electoral process. Other actions the Administration might take to support the voting public's confidence in participating in the presidential elections include providing relevant threat information to state homeland security fusion centers in a expedited manner, working with state and local security officials to secure the nation's polling places, and increasing security for suspected targets in the United States to prevent or mitigate damage from attacks meant to disrupt the voting activities.
section_title: Incoming Administration Considerations and Options
paragraphs: Resolving the presidential election in a timely manner is crucial to allowing the incoming Administration the time necessary to prepare for current and future national security challenges. The longer the presidential election results are delayed, the less time the current Administration has to assist the new Administration. Also, a lack of resolution could result in a delay in President-elect national security personnel appointments and possibly the U.S. being seen as increasingly vulnerable due to an uncertainty as to who will lead the country.
section_title: Congressional Considerations and Options
paragraphs: While the actual day of the presidential election may be uneventful, some observers argue that legislative oversight of transition activities of the current Administration taken to this point may be key to ensuring the incoming Administration is as well prepared as possible. In enacting the Presidential Transition Act of 1963, Congress provided the current Administration significant discretion in deciding the level of support to be given to the incoming Administration. In recognizing the potential risks that may be associated with a presidential transition, the act noted the need for an orderly transfer of executive power.
The national interest requires that such transitions in the Office of the President be accomplished so as to assure continuity in the faithful execution of the laws and in the conduct of the affairs of the Federal Government, both domestic and foreign. Any disruption occasioned by the transfer of the executive power could produce results detrimental to the safety and well-being of the United States and it people. Accordingly it is the intent of Congress that appropriate actions be authorized and taken to avoid or minimize any disruption.
section_title: Phase 4: Post-Election Day to Presidential Inauguration
paragraphs: Phase 4 of the presidential transition includes the approximately 11-week time frame from the selection of a winning candidate to the date the President-elect is sworn in to office: inauguration day.
subsections: section_title: Unique Risks to Phase 4
paragraphs: National security considerations unique to this phase of the transition period include incidents of national security significance that are intended to take advantage of perceived vulnerabilities attributed to an Administration that is coming to an end and a newly elected President attempting to quickly identify and designate national security personnel. Such incidents may be undertaken with the idea of attempting to have the outgoing and incoming Administrations at odds with one another with respect to presidential decision-making desires and to try and take advantage of perceived interagency coordination confusion. During phase 4 many of the current Administration's political appointees resign from their positions causing some security observers to be concerned about the ability of the federal government to effectively recognize, prevent, or respond to a national security-related incident. Such a scenario may be exacerbated as the designated career civil servants that have been placed in acting capacities of political appointee positions may receive conflicting policy or operational direction from outgoing and incoming national security leaders.
section_title: Outgoing Administration Considerations and Options
paragraphs: While some presidential observers argue that there is little motivation for the staff of the outgoing Administration to cooperate with incoming Administration members, others suggest that, when it comes to matters of national security, the desire to protect U.S. interests and preserve the outgoing President's legacy will supersede a lack of collaboration by those soon to depart the White House. It is often observed that the level of animus shown by the outgoing President to the President-elect will have a great deal to do with the cooperation the incoming Administration's transition planning team receives from individuals currently in positions of power. It has also been noted that transitions between Administrations of the same party appear to go smoother. The President's statements and actions with respect to the ongoing transition, specifically as it involves matters of national security, will set the tone and spirit of efforts taken by current staff to assist members of the incoming Administration. Any actions or statements that are perceived to undermine the incoming Administration's policy views on national security matters could be seen as attempting to frustrate the transition process and have negative repercussions for the new Administration's efforts to conduct foreign policy or address national security-related issues.
Some presidential historians see the primary role of the outgoing Administration during the post-election day period as facilitating a transparent and productive transition environment. The desire is that such actions will allow the incoming Administration to be in the best possible position to identify and respond to any significant national security issues that may arise soon after taking office. Such security-related strategic, operational, and policy transition-related activities can be offered in the form of briefings, written product, exercises to simulate day-to-day and crisis environments, and other forms of collaborative and coordinating activities. Activities that could facilitate an effective national security transition include the providing of timely and relevant national security information, the formation of a transition council specifically focused on national security issues, and expediting the security clearance process for incoming members of the President-elect's national security team.
Effective Use of Presidential Transition Funds . Prior to 1963, funds were not allocated by Congress to support the presidential transition and coordination between incoming and outgoing Administrations was generally limited to the administrative issues. Since the enactment of the Presidential Transition Act of 1963, Congress has provided the General Services Administration (GSA) funds to support the substantive aspects of the incoming and outgoing change of Administration activities. Historically, funds allocated for presidential transition activities have been used for travel expenses, the hiring of consultants, and reimbursing federal agencies for various types of support. As authorized by the act, funds provided by GSA to the incoming Administration can only be used from the day following the general election to 30 days after the presidential inauguration. The Presidential Transition Act of 1963, as amended by the Act of 2000, authorizes the GSA to provide a greater level of support to the President-elect and prospective senior leaders of the incoming Administration. The act allows the GSA to coordinate briefings for incoming Administration leaders, provide communication devices to these individuals, and create a directory of legislative and administrative materials that would be useful for new Administration leaders.
Ensure the President-Elect is Aware of Issues that May Affect National Security Interests . During this phase of the transition, every effort should be taken to apprise the incoming President and the senior national security staff of current and near-term threats that may affect United States interests. While the new Administration may be aware of many strategic foreign policy and national security issues, activities relating to tactical, operational, and near-term threats will be the items most likely unknown and possibly negatively affect the new Administration soon after the inauguration. Consistent with section 7601 of IRPTA of 2004 and a recommendation contained in the 9/11 Commission report, Congress requires the outgoing Administration to "prepare a detailed classified, compartmented summary by the relevant outgoing executive branch officials of specific operational threats to national security; major military or covert operations; and pending decisions on possible uses of military force." To assist with Administration national security-related transition efforts, the act also requires the aforementioned summaries to be provided to the President-elect "as soon as possible after the date of the general elections."
Establishment of a Presidential Transition National Security Coordination Council . The outgoing President may wish to consider creating a Presidential Transition Coordinating Council comprised of national security leaders from the outgoing and incoming Administrations. However, unlike the formation of previous Councils, this entity would allow all members to participate in interagency discussions and decision-making activities. In assessing the concerns the incoming Administration is likely to encounter the Presidential Transition National Security Coordination Council could focus on current and short-term national security risks and applicable policy considerations. A joint Administration Presidential Transition National Security Coordinating Council could
oversee the national security transition related activities of federal departments and agencies, facilitate national security focused training and orientation activities to prepare incoming appointees, discuss and collaborate on substantive national security issues that are currently underway or pending decision, and offer lessons learned from past policy and operational national security activities.
Expedited Security Clearance Processing for President-Elect Transition Team Members and Nominated Members of the New Administration . If not already occurring during an earlier phase of the transition period, soon after the election, it is common for the President-elect, Vice President-elect, and senior members of the incoming Administration's transition security team to start receiving classified intelligence briefings. For those individuals who do not already possess an active security clearance, the IRPTA of 2004 allows the President-elect to submit to the FBI or other appropriate agency the names of candidates to be nominated for high-level national security positions through the position of departmental under secretary as soon as possible after the date of the general elections. Prior to the inauguration, the FBI or other appropriate agencies are responsible for undertaking the background investigations necessary to provide appropriate security clearances to individuals who have been designated by the President-elect as key Administration officials. While the adjudication of security clearances is often a concern for individuals who have recently been hired into the federal government, it appears the FBI does have the ability to put forth the resources necessary to ensure senior national security officials are investigated and, where warranted, receive the approval to view classified material in an expeditious manner.
section_title: Incoming Administration Considerations and Options
paragraphs: From a national security standpoint, phase 4 of the transition period is quite possibly the most hectic and exciting. With 11 weeks between election day and the inauguration ceremony, the outgoing and incoming Administrations have much work to accomplish. As the presidential transition period continues and the window for affecting the electoral process narrows, some see this phase as the most likely time for an enemy of the United States to undertake an action to attempt to throw the country into presidential decision-making chaos. With the campaigning and the election no longer a concern, the President-elect will have little time for celebration and reflecting on the past, as collaboration with the current Administration is now seen as an essential element of future success. In this regard the 2008 HSAC report proposed,
the incoming and outgoing Administrations work closely together toward a shared commitment to ensuring a smooth transition of power. This is facilitated by a positive attitude and open mind in both incoming and outgoing Administrations, combined with the willingness to respect and listen to each other's concerns and priorities. The same attitude must also characterize the behaviors of the senior career personnel who remain with the Department and will be counted on to ensure a smooth transition between Administrations.
While numerous transition-related activities commence shortly after a presidential election, some national security experts suggest that none is more important than the efforts undertaken by the national security and intelligence communities to assist in providing information and context to the incoming President and the accompanying new national security team. Given current and projected security challenges, "the transition can no longer be taken for granted as a honeymoon [period] and significant attention needs to be provided to managing the transition." While the incoming Administration has nearly three months to prepare for assuming the presidency, many activities will need to occur in an expedited manner. The President-elect will formally announce leaders of the transition team; personnel will be interviewed to possibly occupy positions in the new Administration; and interaction with the outgoing Administration, Congress, and foreign leaders may occur. The incoming Administration may also:
Select prospective cabinet members with the desire to formally submit to Congress, for confirmation soon after the presidential inauguration (phase 5), a prioritized list of names of those individuals selected to fill key national security leadership positions. Select individuals to be appointed to the NSS, HSC, and others to serve as the President's and Vice-President's senior national security advisors. Generally, senior department and agency positions are left vacant until the Senate has confirmed the President's nominee. While many senior leaders of the national security community require Senate confirmation, other senior political staff with significant national security responsibilities do not require Senate confirmation, including staff of the NSS and HSC. Create a presidential transition website to seek out individuals with national security expertise who will be needed to meet the near- and long-term challenges Request current Administration political appointees to remain in their jobs through the inauguration and possibly the confirmation of new national security leaders to allow for mission continuity and collaboration with new members of the Administration. Overlap in key positions is allowed for limited circumstances. While agencies cannot employ multiple individuals in the same job billet ("dual incumbency"), options exist to temporarily allow both outgoing and incoming Administration personnel to be assigned to an organization. Select career federal employees with significant national security expertise to be detailed to the transition team. Specific focus may be given to members of the military, intelligence community, and diplomatic corps with expertise in the policy priorities of the new Administration. Request substantive briefings on policies and programs of interest to assess historical challenges prior to making decisions related to revising or eliminating current activities.
Some security observers are concerned about a perceived leadership void that can occur during the transition period when the outgoing Administration has constitutional authority, but diminished influence, and the President-elect has much influence, but no authority. However, actions can be taken by the outgoing President and President-elect to ameliorate any suspected appearance of presidential decision-making ambiguity. For example, issues of foreign policy were hotly debated during the presidential campaign of 1992. After the general election, in which Bill Clinton was elected President, many wondered if the President-elect would attempt to initiate foreign policy changes prior to the inauguration. During the transition period, President-elect Clinton addressed these concerns by stating, "President Bush is to be viewed as the sole voice of United States policy and that the greatest mistake any adversary could make would be to doubt America's resolve during this period of transition."
Also during this phase of the transition period the incoming Administration may wish to discuss prospective strategy and policy changes to national security programmatic activities with Members of Congress. If the new Administration desires to announce any new initiatives or changes to existing national security policy or programs, much work will have to be done between the time of the inauguration and the time in which the budget will need to be transmitted to Congress. After the inauguration, the new Administration will have approximately two weeks to submit to Congress a revision of the fiscal year budget proposal submitted by the previous Administration.
section_title: Congressional Considerations and Options
paragraphs: During phase 4 of previous presidential transitions, Congress has required some agencies to have a current senior departmental official "develop a transition and succession plan to be presented to the incoming Secretary and Under Secretary for Management to guide the transition of management functions in a new Administration." The deadline for submission of such a plan was the first of December of the year in which a presidential election occurs. While this legislative requirement appears to provide agency transition guidance that some security experts argue was lacking during prior transfers of power, others see potential problems in the manner in which it will be implemented. For an Administration's transition policy to be of strategic and substantive value, some observers recommend that the individuals responsible for drafting the plan should be career civil servants with significant experience in the agency and an expectation of remaining with the organization for the foreseeable future. This requirement would allow the main author(s) and proponent of the transition plan to remain with the agency for a prescribed period of time and provide continuity and advice to members of the new Administration.
Traditionally, Congress is out of session during much of the phase 4 transition period and may also be undergoing a change in membership. Thus congressional oversight activities during this phase are uncommon. However, some security experts contend that given contemporary risks to U.S. national security interests, a special session of Congress may be beneficial to ensuring the two Administrations are properly coordinating on national security-related issues. Once Congress returns to session and the new members are sworn in, little time is available prior to the presidential inauguration to inquire about past actions and recommend changes. A special session of Congress might be considered soon after the election to ascertain what the outgoing and incoming Administrations will do with respect to transition-related activities. If still in session during the later stages of phase 4, Congress may wish to hold hearings to assess the Administration's progress on stated national security transition-related activities. Congressional concerns during this phase might include the status of incoming and outgoing Administration collaboration efforts, how resources are being expended and toward what purpose, and to ascertain the incoming Administration's national security foreign and domestic policy goals. Congress may also wish to make itself available during phase 4 to address resource requests that emanate from the two Administrations should an incident of national security significance occur.
section_title: Phase 5: Presidential Inauguration: Placement of New Administration Officials and Formation of New Policies
paragraphs: Phase 5 of the presidential transition includes the time frame from the presidential inauguration to a period when the new Administration has its senior national security leaders confirmed, other non-congressionally confirmed political appointees and advisors in place, and established and implemented new national security policies. This phase can last a few months to well into the first year of the presidency.
subsections: section_title: Unique Risks to Phase 5
paragraphs: National security considerations unique to this phase of the transition period would include incidents of national security significance that are intended to subject the new Administration to a crisis and test the actions and policies of the new leaders. An incident of national security significance could occur while the new Administration's national security leadership positions are vacant; personnel have been confirmed, but are new to their respective positions; or national security policies are being developed. Entities that wish to affect U.S. national security interests may see this time period as uniquely vulnerable, with the President and newly assigned staff being perceived as ill-equipped to handle a domestic or foreign national security crisis.
section_title: Departed Administration Considerations and Options
paragraphs: While the outgoing Administration will no longer have constitutional responsibility or authority for safeguarding the country, the actions that were or were not taken prior to the presidential inauguration will be a part of the departing President's legacy. The "Protective Power" as referenced in the presidential oath "has been interpreted as investing the President with expansive authority to take actions necessary to protect the property and personnel of the United States from attack or other dangers." Some scholars argue that the President's duty to protect the country is not limited to the time in which the office was occupied with responsibility extending into the next President's term to a point at which the new Administration has had reasonable opportunity to organize itself and formulate national security policies. As such, any "failure to alert and cooperate with the incoming President with respect to imminent dangers facing the nation directly exposes the country to substantial risk," and may negatively affect the previous President's legacy.
Similarly, the outgoing President should be cautious of any activity taken in the last few days of the Administration or after the inauguration that could hamper the incoming Administration's transition efforts. Such actions might include
establishing or revising national security organizations, policies, or programs that are clearly counter to the positions of the incoming President, interacting with foreign leaders that may have the perception of attempting to portray future U.S. foreign policy desires, and undertaking any steps that would have a negative effect or produce unintended national security consequences.
section_title: New Administration Considerations and Options
paragraphs: The newly elected President, who will wish to quickly set an agenda and move toward implementing goals stated during the campaign, may find the issuance of executive orders and other presidential directives as a way to distinguish new policies from the outgoing President. This may be particularly desirable when outgoing and new President are from different parties and such changes might offer the appearance of instituting a new policy direction in the early days of the Administration. Likewise, the new Administration may wish to quickly promulgate national security policies and strategies for applicable departments and agencies. While the issuance of new strategies and policies may not, in and of themselves, make the country safer, they will convey the Administration's national security priorities and provide the nation an opportunity to assess the new President's intentions. In undertaking efforts to memorialize the new national security policies, many national security observers suggest that the President may be well served to proceed cautiously and take the time to review and assess current policies, and listen to the views of outgoing political officials and remaining career government, military, and diplomatic personnel prior to implementing significant changes in current strategies or operations. To support continued transition efforts and to be afforded the opportunity to learn of the previous Administration's national security policy and program successes and failures, the new President may wish to have prior Administration officials maintain their security clearances and routinely receive briefings regarding current and emerging threats to United States interests.
section_title: Congressional Considerations and Options
paragraphs: Some presidential historians suggest that legislative inquiry and support during the incoming Administration's transition efforts is crucial if Congress is to provide effective oversight during the new presidency. Professor Williams of the Massachusetts Institute of Technology argues that, "the coming transition to a new Administration and Congress opens a window for reform of the organizational structures and processes that surround planning and resource allocation for homeland (and national) security in the executive branch and Congress." While the transition is an opportunity for Members and staff to interact and have substantive discussions regarding the national security policies and goals of the new Administration, some presidential historians note that "transitions are hit-and-miss affairs that handicap the new President in shifting from campaigning to governing and create problems for the Congress." Should the new Administration not make an effort to avail Congress of its foreign and domestic security policy intentions and Legislative Branch does not undertake an active role in understanding the policies and direction of the new Administration, both entities might encounter frustration as neither will feel it is receiving the necessary support to fully uphold its responsibilities. As noted by Mr. Ink, President Emeritus of the Institute of Public Administration, "new appointees are in danger of stumbling during the first crucial weeks and months of an Administration, not so much from what they are striving to do, but from how they are functioning and a lack of familiarity with the techniques that are most likely to get things done in a complex Washington environment." In overseeing and supporting the new Administration's national security objectives, Congress has a number of activities it can undertake.
Prioritize Hearings for Nominated Senior Executive Branch Leaders Who Have Significant National Security Responsibilities . A congressional authority that is often noted for making it possible for the incoming Administration to be in the best position to address national security issues shortly after inauguration is to quickly confirm qualified key political appointees. While Congress will also be undergoing a transition having just been sworn in two weeks prior to the presidential inauguration, some analysts see this as the ideal time for the new Congress to meet with the incoming President's national security leadership team and put in place a foundation to allow for expedited confirmation hearings soon after the President takes the oath of office. As noted by a recommendation of the 9/11 Commission Report of 2004:
Since a catastrophic attack could occur with little or no notice, the federal government should minimize as much as possible the disruption of national security policymaking during the change of Administrations by accelerating the process for national security appointments. We (9/11 Commission) think the process could be improved significantly so transitions can work more effectively and allow new officials to assume their new responsibilities as quickly as possible.
Consistent with recommendations contained in the 9/11 Commission report, the IRPTA of 2004 provides a sense of the Congress regarding an expedited consideration of individuals nominated by the President-elect to be confirmed by the Senate. The act further holds that the Senate committees to which these nominations are referred and the full Senate should attempt to complete consideration of these nominations within 30 days of submission by the newly elected President. In undertaking this responsibility, many security observers see a healthy tension between Congress's desire to act quickly to hold confirmation hearings and the need to ensure that individuals with the relevant national security background and experience have been put forth by the President-elect. In many cases, highly qualified career Senior Executive Service personnel will be in an acting capacity for some of these Senate confirmed positions. Thus the perceived urgency to fill these positions quickly may be negated while Congress ensures individuals capable of meeting the demands of the position are selected and confirmed. Congress may also
work with the new Administration to understand its national security priorities and where applicable have the changes in policies and programs reflected in the forthcoming budget; pass an appropriations bill without undue delay; quickly assign new and existing Members of Congress to committees focusing on national security issues to allow these individuals to receive briefings and understand the issues for which they have oversight; hold hearings comprised of national security experts and members of the new Administration to gather ideas on prospective U.S. national security policies and goals; and hold hearings soon after the new Administration has produced its national security strategies, policies, and presidential directives to discuss objectives and determine presidential priorities.
section_title: Conclusion
paragraphs: The Presidential election and transition period are characterized by unique national security challenges. In particular, if the election results in a change of Administration, a new President will likely face many national security-related challenges upon taking office. Risks during the transition period may be minimized with proactive executive branch and congressional actions. Whether the enemies of the United States choose to undertake action counter to the nation's security interests or the new President experiences a relatively peaceful period during the transition, a new Administration's recognition and response to these security-related challenges will depend heavily on the preparation and education activities that have occurred prior to the inauguration. While it may be impossible to stop an incident of national security significance during the presidential election process, there are steps that can be taken during all phases of the transition to lessen the risks to the nation. Such actions may be helpful in preparing the nation for possible risks during the presidential election period and mitigating the effects of acts taken by those that wish to cause confusion during the transfer of presidential power. The transition-related actions or inactions of the outgoing and incoming Administration may have a long-lasting affect on a new President's ability to effectively safeguard U.S. interests and may also affect the legacy of the outgoing President.
Appendix A. Recent Military Operations Occurring During U.S. Presidential Transition Periods
Appendix B. Representative Examples of Incidents of National Security Interest Occurring During Periods of Governmental Transition
This appendix provides a representative listing of incidents of terrorism that have occurred during times of transitions of heads of state. The criteria for inclusion in this chart was based on the aggressor's real or perceived intent to change the course of an election or affect future policy of the country during a time of transfer of presidential authority. It should be noted that, barring relatively few examples, there is little evidence that incidents of national security significance were planned for a specific date prior to an election. While varying levels of planning occur prior to an incident, as with most criminal acts, the leader directs, or the individuals act, when opportunity for the best possible outcome is presented. With respect to times of presidential transition, the optimal time for an attack, for a variety of reasons, may not present the best opportunity for the aggressors to attempt an incident. As such, the potential time frame for risk is present during any phase of the transition, with the effects of an incident differing based on the location of the event, the proximity to the election date, and the reaction and actions of the U.S. national security enterprise.
Many security experts believe that some of the incidences noted below had a significant impact on the outcome of the country's national election or subsequent policies. National security observers are fearful that terrorists groups may see some of the incidences as successes and feel emboldened to attempt to affect future national transfers of power by launching attack just before the election. These groups may see the timing of such an action as a viable strategic opportunity to further the goals of their cause. However, it should be noted, other security experts suggest that incidences of national significance taken prior to a national election could produce a reaction that is counter to the long-term goals of the terrorist group.
Appendix C. Congressional Legislation Addressing Various Aspects of National Security Considerations During Presidential Transitions, in Chronological Order (1963-2008)