ABSTRACT
Introduction .................................................................................................. 399 Basic Constitutional Principles and National Security .............................. 400
Constitutional Foundation ................................................................. 401 Application of Constitutional Principles to National Security and the Continuing Rise of Presidential National Security Power ......................... 406
Express and Implied Presidential Powers .......................................... 408 Defining Modern Presidential Actions .............................................. 411 Expanding Use of Executive Orders................................................... 412
War Powers/Commander-in-Chief.............................................................. 412 Foreign Affairs ..................................................................................... 416
Emergency Powers and Executive Privilege ................................................ 417 The Intelligence Community ....................................................................... 420
Basic Primer in Intelligence Law........................................................ 423 Concluding Remarks .................................................................................... 426 References ...................................................................................................... 427
It is axiomatic that the U.S. is a nation of laws. From our inception as a unique republican experiment over 2 centuries ago, we, as a people, have struggled to account for the dark forces of human mendacity from both our enemies and our own citizens. The weapon of choice has been our Constitution and the laws and procedural framework that flow from its precepts. Uppermost in the Founders’ minds was the evil that humans can do to one another. They were acutely aware the most formidable engine for oppression was government, for they witnessed the excesses and depredations of unrestrained rule and rulers all around them in colonial America. The Founders sought something better. Freedom, though a cherished ideal throughout history, was a rarely glimpsed almost mythical creature in human societies
up to that time. A bold group of farmers, tradesmen, lawyers, landowners, merchants, ministers, and soldiers all came together to create and, more importantly, to implement the greatest mechanism yet devised for the establishment and maintenance of personal liberties. No one has improved on their efforts in the 216 years since. That work of collective genius, our Constitution, is the foundation upon which the American edifice stands. Its wisdom has guided us through all of our tribulations as a nation and all the threats to our survival, internal and external. Our nation now faces yet another trial, perhaps our greatest, with the tension between government and freedom at its core. As it has before, the Constitution is there to guide us and by remaining faithful to its principles we will survive and triumph in this epoch of international terrorism.
