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National Security Law: Issues, Historical Context, and Constitutional Provisions

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  1. Chapter 1 - Introduction

  2. The special legal problems in national security law • Does the US Constitution extend beyond the shores of the US? • Does international law exist, outside of trade? • Does the President have unitary national security powers? • Outside the US? • Inside the US?

  3. Wisdom v. Legality • What did de Tocqueville mean when he said that Americans confused the question of the existence of a power with the wisdom of its use? • Because we can, should we? • Not just a national security question • Look at biomedical research

  4. Current and past issues • What are the issues of the day? • War on terror - non-state actors • Conflict with China and Russia • Conflict with allies - Israel, France, Germany • What are past abuses of national security law? • What are current practices that may be seen as abuses in the future?

  5. Historical Context • Our contemporary world was shaped by the cold war following WWII • For a brief period between the fall of the Berlin Wall and 9/11 it looked like we might escape from the cold war mentality • Post 9/11, little is happening that would have been shocking in the 1950s, we just have better technology • All that is missing is ideology • Academics are about the only Marxists left • Even the communists in Italy are capitalists

  6. Chapter 2 - Providing for the ‘‘Common Defense’’: The Original Understanding • How were most countries governed in the 1400s? • What were the justifications for this form of government? • What did the legal philosophers argue were better forms of government? • Why was separation of powers key to these arguments?

  7. The Nature of War • What is the history of war? • Politics by other means? • Moral issue? • What is Formal War? • What is Informal War? • Why does Informal War pose much more difficult issues for international affairs and international law?

  8. What is the role of the state v. private parties? • What were letters of marque and reprisal? • Are wars waged by private parties now? • What is the role of private contractors and mercenaries in Iraq? • Afghanistan? • Are US private contractors who are injured veterans? • Who takes care of their medical needs? • What about the non-US employees? • What is the command and control issue with mercenaries?

  9. The Colonial experience • How were the colonies governed? • How much control did England really exercise over day to day affairs? • What was the colonial experience with standing armies? • How is this reflected in the US Constitution? • What are the risks of a standing army? • How did the founders deal with that?

  10. Independence • What was the legal status of the colonies when they declared independence? • The Continental Congress • How was the country governed between independence and the Articles of Confederation? • What was the fundamental flaw in this system? • Why did it almost cost us the revolution?

  11. The Articles of Confederation • What was the role of the states versus the federal government in the Articles of Confederation? • Why did this make it difficult to govern the country? • What external threats were still facing the US? • Did we control the continent? • Were the European powers at peace?

  12. The Constitution • How did the drafters deal with the problems seen during the Continental Congress era? • What was the relationship between the states and the federal government in the original Constitution? • How were powers shared? • What were the founders expectations about the federal government? • How did the shape the Constitution?

  13. Federal Separation of Powers • Three Branches of Government • Legislative • Judicial • Executive • How was separation of powers to protect the nation? • Did the founders anticipate having two branches controlled by the same political party?

  14. Then Versus Now • How has the federal government changed? • What are the critical periods for this change? • Why does this pose Constitutional problems?

  15. War in the Constitution • Why is the nature of war as understood by the drafters important? • What does this tell us about the congressional power to declare war? • Is this separate from the power to wage war? • What about defensive war? • Why is defensive war a special philosophical and religious issue?

  16. Organization of the Military • What fundamental change in the organization of the military was not anticipated by the drafters and which undermines the Constitutional control of war making? • Why does it matter that the congress can now allow a war to be started without having to do it themselves?

  17. Review of Constitutional Provisions • Congress - Article I, Section 8 • http://biotech.law.lsu.edu/cases/adlaw/constitution.htm#con1.8.11 • President - Article II, Section 2 • http://biotech.law.lsu.edu/cases/adlaw/constitution.htm#con2.2 • Ambiguous - Habeas Corpus - Article I, Section 9 • http://biotech.law.lsu.edu/cases/adlaw/constitution.htm#con1.9.2

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