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The Legal Basis for National Security and Homeland Defense/Security
We begin this module with an examination of the role of the three branches of government and their roles in providing national security and homeland defense, as set out in the U.S. Constitution and its interpretations by the courts over the years. While we go through the major sections I hope that you will encourage your students to read and think about some of the deeper issues about our "checks and balances" raised in this arena. Included for each section are proposed discussions, additional readings, and research projects that can be used as an assessment tool with an overall assessment quiz of the subtopic at the conclusion.
When trying to understand the role of the three branches of government in providing for homeland security, we must begin with the role of the military since one of the main reasons the colonies / states formed a United States of America was to provide for the common defense of our homeland by a national military in addition to the existing state militas. It is only in recent times has this notion been expanded to a more generalized concept to include civilian agencies. A key point to keep in mind is that the drafters of the Constitution had a certain bias - they were recalling their past bad experiences with the British and were wary of a military. Yet from their written guidance and its interpretation by the courts (because some things are implicit rather than explicit in that document), we have a pretty good idea of who has what authority to make military related decisions in defense of our country.
A number of Constitutional provisions address Congressional authority over the military, for example, what is sometimes called the power of the purse - the ability to control funding. Interestingly, Congress has sought to limit military operations that way - such as in 1976 in Angola, and 1982 in Nicaragua. Of course, Article I gives Congress the power to declare war, but we also live in a world of international agreements, most notably in this context, the United Nations. They have outlawed aggressive war. There is also the issue of situations that fall short of a declared war. In more recent times, you may recall we have had armed rescues of US citizens in Grenada by President Reagan and in Iran by President Carter, as well as attacks on Libya by President Reagan for attacks on our military in Germany.
As you can see from above, the President also has a constitutional role, of course. He or she takes an oath to defend the Constitution. This section references how the President has imposed rules on the civilian workplace during war time in the name of national security and homeland defense. But the biggest conflict over the President's authority came with the War Powers Act which came as a result of Congressional frustration over Vietnam and the secret war in Cambodia. The Act was passed over President Nixon's veto and no President since then has conceded its constitutionality. Nevertheless, Presidents have informally followed it, such as in Desert Storm and Iraqi Freedom.
The Courts also have a critical role to play in how homeland defense is implemented. We will examine a selection of cases demonstrating how far the law can go or not go in the name of national security and homeland defense.
Student Learning Outcomes
Upon successful completion of this unit the student will be able to::
Discuss the origins of national security in the US Constitution.
Identify the sources of national security and war making power in the US Congress and various ways Congress has exercised that power.
Identify the sources of national security and war making power imbued in the President and the various ways the President has exercised that power.
Discuss how the War Powers Resolution has been implemented.
Give examples of how the US Courts have been involved in National Security Law.