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Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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Page 1: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

Chapter 1 - Introduction

Page 2: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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The special legal problems in national security law

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?

Page 3: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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Wisdom v. Legality

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

Page 4: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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Current and past issues

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?

Page 5: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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Historical Context

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 communists in Italy are capitalists

Page 6: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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Chapter 2 - Providing for the ‘‘Common Defense’’: The Original Understanding

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?

Page 7: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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The Nature of War

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?

Page 8: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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What is the role of the state v. private parties?

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?

Page 9: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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The Colonial experience

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?

Page 10: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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Independence

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?

Page 11: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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The Articles of Confederation

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?

Page 12: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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The Constitution

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?

Page 13: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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Federal Separation of Powers

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?

Page 14: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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Then Versus Now

How has the federal government changed? What are the critical periods for this change? Why does this pose Constitutional problems?

Page 15: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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War in the Constitution

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?

Page 16: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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Organization of the Military

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?

Page 17: Chapter 1 - Introduction. 2 The special legal problems in national security law Does the US Constitution extend beyond the shores of the US? Does international

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Review of Constitutional Provisions

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/constitution.htm#con2.2

Ambiguous - Habeas Corpus - Article I, Section 9 http://biotech.law.lsu.edu/cases/adlaw/constitut

ion.htm#con1.9.2