Chapter 1 - Introduction
[T]his concept of ‘‘national defense’’ cannot be deemed an end in itself,
justifying any exercise of legislative power designed to promote such a goal.
Implicit in the term ‘‘national defense’’ is the notion of defending those values
and ideals which set this Nation apart. For almost two centuries, our country
has taken singular pride in the democratic ideals enshrined in its Constitution. .
. . It would indeed be ironic if, in the name of national defense, we would
sanction the subversion of one of those liberties . . . which make the defense of
the Nation worthwhile. [United States v. Robel, 389 U.S. 258, 264 (1968).]
The special legal problems in national
security law
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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?
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Wisdom v. Legality
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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
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Current and past issues
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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?
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Historical Context
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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 Chinese communists are capitalists
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Chapter 2 - Providing for the ‘‘Common
Defense’’: The Original Understanding
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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?
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The Nature of War
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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?
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What is the role of the state v. private
parties?
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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?
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The Colonial experience
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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?
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Independence
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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?
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The Articles of Confederation
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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?
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The Constitution
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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?
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Federal Separation of Powers
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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?
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Then Versus Now
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How has the federal government changed?
What are the critical periods for this change?
Why does this pose Constitutional problems?
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War in the Constitution
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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?
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Organization of the Military
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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?
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Review of Constitutional Provisions
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Congress - Article I, Section 8
 http://biotech.law.lsu.edu/cases/adlaw/constitut
ion.htm#con1.8.11
President - Article II, Section 2
 http://biotech.law.lsu.edu/cases/adlaw/constitut
ion.htm#con2.2
Ambiguous - Habeas Corpus - Article I, Section 9
 http://biotech.law.lsu.edu/cases/adlaw/constitut
ion.htm#con1.9.2
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