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National Security

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Of Highest Concern
Every nation defends itself. Most governments, in fact, regard national security as their highest concern. From military readiness to foreign policy and domestic laws, governments devote vast resources to protecting their nations in many ways. This fundamental responsibility never changes, but how it is defined by a government and its people can vary dramatically over time. Political, cultural and social forces, occurring within a nation itself and on the world stage, all work to shape the definition of what makes it secure. Constitutional law tells governments broadly what they can and cannot do in the nameof security. Whether in peacetime or in war, the Constitution imposes stability and limits upon official power.
The U.S. Constitution divides responsibility for national security among thethree branches of federal government. This system, known as the separation ofpowers, reflects the intent of the Constitution's framers that no single branch become too powerful. Thus each branch oversees the other through checks and balances with specific powers being neatly drawn. The president makes foreign policy through treaties with other nations, appoints ambassadors, and serves as the commander in chief of the armed forces. These executive branch powers are limited by those of the legislative branch. Congress imposes taxes toprovide for defense, and the Senate ratifies the president's treaties and appointment of ambassadors before either can go forward. Although the presidentcommands the armed forces, Congress alone may declare war. Overseeing thesetwo branches is the judiciary. The courts' role is to see that they each exercise their own constitutional powers legally, without encroaching upon one another, while also safeguarding the civil liberties of citizens when they arethreatened.
History, however, has blurred these neat lines. In the twentieth century, presidents have increasingly asserted control over national security in ways that have reduced the power of the legislative branch. Lawmakers have resisted this encroachment, yet with little success. The judiciary, for its part, has shown reluctance to intervene either to stop this trend or to uphold civil liberties that become captive to new definitions of the national interest. The practical conduct of national security thus has posed a hard question: who isin charge?
Congress and the president shared power comfortably until the Civil War. In 1861, President Abraham Lincoln took unprecedented action by ordering the blockade and capture of ships bound for Confederate ports, an action that broughta legal challenge by ship owners. They argued that he had exceeded his authority because Congress had not declared war. By a narrow 5-4 majority, the Supreme Court upheld the president's blockade in The Prize Cases (1862),named after an area of maritime law called prize law. The Court acknowledgedthat, even without a formal declaration by Congress, a state of war existed.Even though no branch of the government had the right to make war on one of its own states, laws passed in 1795 and 1807 gave the president the statutoryright to suppress an insurrection. Decisions in this regard, the Court determined, belonged to the president, who could legally defend the nation withoutthe need of action by Congress.
Presidential Power
Over the next 80 years, lawmakers and presidents jostled over national security. Immediately following the Civil War, Congress reasserted itself by refusing to ratify treaties. World War I saw President Woodrow Wilson claim broad presidential powers to regulate food and fuel prices, which, though highly controversial, became law in 1917. Wilson's agenda during the crisis also led Congress to prohibit alcohol, while conferring on the president sweeping authority over industry, national transportation, and exports. In the name of national security, civil liberties were sharply curtailed, as the Wilson administration pushed through passage of the Espionage Act of 1917. The administrationthen used this law, along with the much older Alien and Sedition Act of 1798, to prosecute over two thousand cases against war protesters and dissenters.But presidential power did not outlast this period. After the war, a resurgent Congress rejected many of the president's national security proposals.
The government clampdown on civil liberties was met with approval by federalcourts. No cases reached the Supreme Court until shortly after the war, but then it refrained from interfering. One case, Schenck v. United States(1919), held that government limits on freedom of speech could be acceptableduring wartime, and thus rejected the appeal of a man convicted for distributing pamphlets attacking the military draft. Justice Oliver Wendell Holmes setforth the so-called test for "clear and present danger," defining the suppression of free speech as permissible when words "will bring about the substantive evils that Congress has a right to prevent." The Court upheld other convictions for publishing articles criticizing the war, hindering military enlistment, calling for labor strikes, and other offenses deemed unpatriotic. Not for several decades would this judicial outlook change.
Greater assertions of presidential power came about in the World War II. Evenbefore the formal declaration of war in December of 1941, President FranklinD. Roosevelt exercised emergency powers. He began a naval war against Germany, seized defense factories, and created the Office of Price Administration (OPA), an administrative body for setting consumer prices that Congress only subsequently empowered with legislation in 1942. During the war, the presidentmobilized virtually every aspect of the national economy, utilizing industries for defense production and rationing fuel to consumers.
National Security during War
As before, the executive branch also sacrificed civil liberties to the war effort. In February of 1942, an official War Department memo expressed alarm that "112,000 potential enemies of Japanese extraction are at large today," andreasoned that the absence of any sabotage to date "is a disturbing and confirming indication that such action will be taken." Within two months, the Roosevelt administration declared the entire West Coast a military area, evacuated and detained 112,000 Japanese Americans, and held them in "relocation centers" for the duration of the war. About 70,000 of the detainees were U.S. citizens. A legal challenge against the internment in Korematsu v. United States (1943) failed. Extreme measures by the government, the Court held, were justified in wartime by the compelling interest in maintaining national security.
During the Cold War era, presidential power grew. Presidents Harry Truman andLyndon Johnson sent U.S. troops to Korea and Vietnam without a congressionaldeclaration of war. Known euphemistically as police actions, these deployments, at least initially, brought no objection from Congress. Politicians of the era commonly accepted the premise that the national defense depended upon stopping Communist expansion around the globe. Leaving this up to the president, Congress concerned itself with fighting "the Red menace" at home, investigating alleged Communist infiltration of the government, army, and entertainment industries. Besides asserting the power to wage war, the executive branchissued sweeping orders. The Constitution does not define the extent of the power to issue a so-called "executive order," which is remarkably similar to legislation. In 1952, however, it was tested when President Truman seized the nation's private steel mills in order to prevent an imminent labor strike fromharming the Korean War effort. The steel industry succeeded in stopping thistakeover in Youngstown Sheet & Tube Co. v. Sawyer (1952), which the Supreme Court, in one of its few intrusions into the national security area, held unconstitutional. Finding that the president had usurped lawmakers' role, Justice Hugo Black's opinion insisted that the executive branch must observe the separation of powers.
The Vietnam War eventually produced a backlash against presidential power. Despite promises by President Richard Nixon to end the unpopular war, hostilities continued, casualties increased in number, and the United States expandedfighting into Cambodia. At home, social upheaval accompanied legal challengesto the president's war effort. Some lawsuits claimed that the war was unconstitutional because Congress had not declared it. The Supreme Court rejected these arguments. DaCosta v. Laird (1973) upheld military conscription,and in Holtzman v. Schlesinger (1973), a suit brought by members of Congress, the Court rejected their challenge to the president's right to wage undeclared war by noting a long history of the very practice and concluding that Congress had the legislative power to resist presidential actions.
But the justices ruled differently in a major civil liberties case. The lawsuit in New York Times Company v. United States (1971) began when the White House tried to stop publication of government war documents by the Times and the Washington Post. This was a 7,000-page classified studyon the Vietnam War through 1968, popularly called the "Pentagon Papers". Thenewspapers claimed the government's censorship violated the First Amendment.Claiming national security interests, the Nixon administration said publication would hurt the nation militarily and prolong the war. The Supreme Court rejected this argument and allowed publication, but only in a sharply dividedmanner that included nine separate opinions. While varying in their reasons,the majority would not permit the government to curtail speech rights beforematerial was even published, an unconstitutional abridgment known as prior restraint. The decision marked an historical watershed in limiting the government's power to put its definition of national security above the First Amendment.
A Need for Balance
Lawmakers frustrated with presidential war-making passed the War Powers Act of 1973. An attempt to enforce the Constitution's balance of power, the law curtails the president's ability to send troops into foreign areas in the absence of a declaration of war. It requires presidents to report to Congress first, and, within 60 days of deployment, to begin a troop recall that lasts no longer than thirty days. Congress may at any time force a recall of troops. Nopresident has liked nor been terribly held back by the War Powers Act. Whilethe nation has not engaged in a protracted war since the Vietnam era, the law stopped no president from sending U.S. forces into conflict, whether President Ronald Reagan in Lebanon and Grenada or President George Bush in the Persian Gulf and Panama. The federal courts have rejected lawsuits demanding enforcement of the law, notably in Crockett v. Reagan (1982), which held that Congress' lawmaking power was sufficient to address any problems.
The National Security Council (NSC) has played a pivotal role since the latetwentieth century. Established in 1947 and placed under executive branch control two years later, the NSC originally was a small advisory group. Gradually, it assumed policy functions that formerly belonged to the State Department.Thus from 1968 to 1972, National Security Advisor Henry Kissinger took the primary role in shaping President Nixon's foreign policies on Vietnam and theMiddle East, eclipsing the role of Nixon's own secretary of state. By the mid-1980s, having attained its highest influence to date under President Reagan,the council became enmeshed in the Iran-Contra scandal. This grew out of theReagan administration's backing of anti-Communist rebels, the Contras, in their war against the Nicaraguan government. The administration's position failed to win congressional support. After Congress banned U.S. military aid to the rebels, the NSC violated the ban by secretly selling weapons to the government of Iran, and then giving proceeds from those sales to the Contra rebels.An investigation of the scandal lasted over six years, led to numerous prosecutions, and resulted in a few convictions that were overturned on appeal orreversed by presidential pardon.
In the 1980s and 1990s, broader definitions of national security emerged. Thecollapse of the Soviet Union effectively ended the Cold War, which had beenthe fundamental paradigm in national security for over four decades. Now, therise of international terrorism, new economic challenges, and even the illegal drug trade were all characterized as national security issues. The National Security Council became the coordinating point for all government agencieson national security matters as its expanding mission involved the heads of the military and the Central Intelligence Agency (CIA), and even on occasion such cabinet members as the secretary of the treasury and the director of theOffice of National Drug Control Policy. Official views on what endangered thenation, and what protected it, once again were seen to change almost as quickly as the world.

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