National Security Law and the Constitution

National Security Law and the Constitution

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Publication Date

2-21-2025

Abstract

The third edition of our text remains true to the “mission statement” from our original text: “to offer students insights into the complex process of national security legal practice by focusing on essential legal sources and national security issues touching on the full spectrum of national security powers.” In a field of law that seems to expand continuously with new and complex issues blossoming, sometimes unexpectedly, choosing what to include is a genuine challenge. Our goal from the inception of this collective effort has remained constant in the face of this challenge: to offer students and professors a text that is both comprehensive and accessible. To that end, we have made some significant changes beyond updating information. First, we are excited that a new co-author, Amy Gaudion, has joined our team. Amy brings both experience and scholarly insight to our project. Substantively, our book has been refocused to reflect the latest legal and policy changes and is shorter in length. This was not accomplished by deleting important information. Instead, we carefully curated each chapter, transforming many case extracts into narrative summaries that provide important context for what we consider currently to be the essential cases. Second, we added a new version of Chapter 2, which outlines for students the national security decision-making structure and process, focused most logically on the executive branch. This should provide students with a better sense of how law, policy, and practice influence the formulation, execution, and critique of national security. Third, we included Chapter 6, another new chapter focused on unique challenges associated with responding to domestic emergencies. While the previous edition integrated this topic into domestic use of the armed forces, these are now two distinct chapters about it. Finally, we reorganized the text to progress from the criminal law- oriented response to national security threats to use of the military as a tool to protect national security. Chapter 1, “An Introduction to the ‘National Security’ Constitution,” continues to rely on a deep dive into a single case: Hamdi v. Rumsfeld, 542 U.S. 507 (2004). We contemplated using a more recent decision, but we remain convinced that analyzing the issues in this case, and the analysis reflected in its various opinions, is an ideal way to introduce the intersection of law and policy in this domain. This is intended to allow newcomers to the field to acquaint xxixxii Preface themselves, in an absorbable way, with some of the themes, techniques,  institutions, sources of law, and (it must be said) some of the ubiquitous jargon common to the many facets of national security law. Part I remains centered on broad principles that transcend many more specific national security practice areas. We begin with the constitutional framework and the friction points built into it. Part I also addresses the relationship of international law to U.S. national security practice, as well as presenting a general overview of domestic emergency response authorities. The text then transitions to a more topical approach to national security law and practice, illustrating how law affects the leverage of criminal, informational, intelligence, military, and economic powers. The final chapter looks towards the future and considers how the digital age is affecting national security practice. We have written a casebook, not a treatise, and our choices reflect our aim to provide students with a serious introduction to a difficult subject—one that enlightens but does not overwhelm. We hope this text enables students to appreciate the challenge of responding to the many threats to national security in a way that aligns with our nation’s commitment to the high ideals of our Constitution and the rule of law. Now, more than ever, an understanding of the question at the heart of national security law—“how the interests of security and liberty are reconciled”—is crucially important.

ISBN

9798889066064

Comments

Third Edition

Table of Contents

Contents Preface Acknowledgments PART I THE CONSTITUTIONAL FRAMEWORK CHAPTER 1 An Introduction to the “National Security” Constitution CHAPTER 2 The Role of Law, Lawyers, and Institutions in the National Security Decision-Making Process CHAPTER 3 Lessons of History CHAPTER 4 Governing Frictions CHAPTER 5 The President, Congress, and Shared National Security Powers CHAPTER 6 Responding to Domestic Emergencies CHAPTER 7 International Law and National Security PART II CRIME AND NATIONAL SECURITY CHAPTER 8 Criminal Investigations and National Security CHAPTER 9 Prosecuting National Security Crimes CHAPTER 10 Preventive Detention PART III THE LEGALITY OF USING MILITARY FORCE CHAPTER 11 Constitutional War Powers CHAPTER 12 International Law and the Use of Force CHAPTER 13 Domestic Use of the Armed Forces PART IV INFORMATION AND NATIONAL SECURITY CHAPTER 14 Intelligence Exploitation CHAPTER 15 Protecting Sensitive Information CHAPTER 16 National Security and the Press PART V SOFT POWER AND NATIONAL SECURITY CHAPTER 17 Economic Powers and National Security CHAPTER 18 National Security in the Digital Age Table of Cases Table of Authorities Index

Publisher

Aspen Publishing

National Security Law and the Constitution

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