Tag Archives: Separation of Powers

The National Security Council Legal Adviser: Crafting Legal Positions on Matters of War & Peace

Jennifer Marett investigates the little-known position of National Security Council Legal Advisor. Drawing on a wide range of historical material as well as interviews with several previous holders of the position, Marett traces its roles and responsibilities from inception through the current administration. She concludes by identifying several contemporary institutional challenges affecting this important intelligence community role.

Unknotting the Tangled Threads of Watergate Lore

Reviewing Leak: Why Mark Felt Became Deep Throat by Max Holland

“Holland does more than present what is certainly a more nuanced explanation for the leaks by the whistleblower “Deep Throat.” The research that goes into this relatively short book (200 pages of text, plus exhaustive footnotes) not only collects in one place the facts surrounding the investigation of Watergate, but also assesses many of the myths that have developed around that rather remarkable period of history.”

Virtual Checkpoints and Cyber-Terry Stops: Digital Scans To Protect the Nation’s Critical Infrastructure and Key Resources

The cybersecurity risks to the nation’s critical infrastructure and key resources are significant and increasing every day. While a sound legal basis exists for the government to use computer intrusion detection technology to protect its own networks, critical infrastructure and key resources, primarily owned by the private sector, are governed by a different set of constitutional principles and laws. This article explores the potential for a new cybersecurity exception to the Fourth Amendment’s warrant and individualized suspicion requirements. By viewing cybersecurity through a protective Fourth Amendment lens, as opposed to a criminal, intelligence, or military lens, fairly well established legal frameworks from the physical world can be applied to cyberspace to enable the government to use technology to identify malicious digital codes that may be attacking the nation’s critical infrastructure and key resources without running afoul of the Fourth Amendment.
The article argues that reasonable and limited digital scans at virtual checkpoints in cyberspace, which are binary and do not initially expose the contents of the communications to human review, and “cyber-Terry stops,” are a constitutional and effective way to minimize the cybersecurity risks to the nation. The article proposes that Congress consider and enact sensible new legislation that will specifically enable the government to take remedial and other protective actions in cyberspace within the constitutional framework that has enabled this nation to prosper.

Basic Principles of the War Power

The Framers of the U.S. Constitution assigned to Congress many of the powers of external affairs previously vested in the English king. That allocation of authority is central to America’s democratic and constitutional system. When decisions about armed conflict, whether overt or covert, slip from the elected members of Congress, the principles of self-government and popular sovereignty are undermined. Political power shifts to an executive branch with two elected officials and a long history of costly, poorly conceived military commitments. The Framers anticipated and warned against the hazards of Executive wars. In a republican form of government, the sovereign power rests with the citizens and the individuals they elect to public office. Congress alone was given the constitutional authority to initiate war.

Legislative control over external affairs took centuries to develop. The English Parliament gained the power of the purse in the 1660s to restrain the king, but the power to initiate war remained a monarchical prerogative. In his Second Treatise on Civil Government (1690), John Locke identified three functions of government: legislative, executive, and “federative.” The last embraced “the power of war and peace, leagues and alliances, and all the transactions with all persons and communities without the commonwealth.”  To Locke, the federative power (what today we call foreign policy) was “always almost united” with the Executive. Any effort to separate the executive and federative powers, he counseled, would invite “disorder and ruin.”

The Great War Powers Misconstruction

The term “war” is found at four locations in our Constitution. However, the word alone signals nothing about the powers of the two political branches the Constitution creates, executive and legislative, and nowhere in the Constitution does the term “war powers” appear. At some point in our history, the word “powers” was coupled with “war.” There has ensued a continuing argument about who, as between the President and Congress, owns those powers. But little or no attention has been given to just what powers are being discussed, and no attention at all has been given to what the Constitution itself says about those powers. Yet, a close examination of the Constitution readily reveals the answers. Congress owns all of the powers to create and field a military (no matter how the powers are defined), and the President has the executive authority. The involvement of the United States in multiple military conflicts, ultimately at the behest of the President and not the Congress, is evidence that currently both the executive and legislative branches operate contrary to the mandates of the Constitution. Thus, the notion of war powers must be reconsidered.