Oil Spill: A National Security Failure on a Grand Scale

The Soviet Union coined the term “national technical means” to convey a clear and appropriate concept — namely, sovereign states maintain exclusive control over certain agencies that can be applied to determine outcomes in certain situations. Applying this understanding to the Gulf Coast oil spill crisis, one must ask when it would have been correct and also prudent to approach the crisis with national technical means, as opposed to mounting a proxy effort through the lesser means available to BP Oil Company.

The principle of decision would necessarily be one that appropriately balanced competing risks. Presumably, the graver and more immediate the danger, the more important it would be to exercise exclusive sovereign jurisdiction insofar as national technical means could produce the most effective management of the risks. Where management of the risks could be accomplished either swiftly or more efficiently by the proxy authority, it would be more appropriate to defer to the proxy (whose own resources may be said to be included in national technical means, insofar as they can be commanded by sovereign authority).

Approaching day 80 in a crisis that has demonstrated enormous gravity of risk and concomitant expenses of remediation, it is clear that any more immediate and conclusive intervention would have been preferable to the path chosen. If, therefore, national technical means could have produced such an immediate and conclusive management of the risks, it would be an error in judgment of enormous dimensions that led to following the less eligible course. That analysis, in turn, would depend upon an assessment of how far it was determinable at the outset of the crisis what were the true dimensions of the risks involved.

Inasmuch as substantial historical evidence exists on which to found a judgment of the dimensions of the risk, apart from the representations of the proxy authority, it would be difficult to see how any competent authority could have failed to see differences of orders of magnitude between the consequences of an immediate and conclusive response, on the one hand, and a delayed response on the other hand. Without making a jugment about what national technical means would have been available for these purposes, we can nonetheless assess the procedure that would have had to be folllowed to make such a determination.

In the first place, it would have been necessary to declare a national security emergency and to concentrate decision making in national security authority. Thence, the judgment as to whether to destroy the well (if possible) and whether to save the well (the apparent strategy preferred) would have been made exclusively by the sovereign authority (not excluding input from the proxy authority).

Viewed in this light, it is patently clear that the cooperative relationship between BP Oil and the United States has operated as a substitute for a clear assertion of national security authority. Before inquiring into the technical possibilities, therefore, one must answer the question of whether the fundamental failure has not rather been a political and administrative failure. While I may be convinced that the well could have been destroyed by conventional military means, what is important is whether any serious consideration were given to the question. Nor is it material whether such a course would have significant consequences. For the rule of decision in this case must clearly have been to follow the course resulting in the least damage, and only a comparative analysis of probable damage in either case could be the basis of such a decision. It is not far-fetched to suggest that there is no possible outcome of a targeted explosion in this situation that could have had consequences (and therefore risks) even approximating those actually encountered in the course chosen. Moreover, these are just such circumstances as were envisioned when the fundamental principle was adumbrated in Federalist Papers # 22, where Hamilton observed that “upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated.” He especially considered infelicitous deference to minorities or foreigners in rendering national security judgments.

The failure to apply, or even to explore, the application of national technical means to the Gulf Coast crisis, therefore, constitutes a national security failure on a grand scale.