Friday, July 9, 2010

Presidential Powers During National Emergencies

In January 1962 at the height of the Cold War the Committee on the Judiciary in the House of Representatives released what I view as an important baseline study of laws in effect during a national emergency. A URL has been created by Steve Aftergood of FAS for me for this document which has been previously unavailable in virtual form. Go to the following:
Congress in my experience, only 45 years and going on, rarely challenges, studies, documents, or even tries to prevent President's from taking emergency actions when necessary for a variety of reasons. This history is long and complex and has not been studies adequately IMO by either academics or the legal profession in particular. One useful effort was the creation of a National Security law course with appropriate materials beginning in the late 80's and now in a 6th edition with appropriate teaching materials. I understand it is the most popular elective course in American law schools. Professors Stephen Dycus and Peter Raven-Hansen are to be congratulated for their efforts in focusing on the use of National Security authorities domestically. Prior to their efforts National Security law was viewed largely as International Relations and Treaty Law and did have some skillful analysis as for example by law professor John Norton Moore who developed several treatises on this approach.
The problem of course is just as Homeland Security has started evolving towards domestic issues of not just security but domestic INTEL, privacy, and civil liberties, and documentation of citizens and noncitizens, the superficial efforts to reconcile US history and the Constitution with these efforts will dominate Homeland Security for the rest of time. Why? Because in a way while the US may not be the "gold" standard anymore in economics or even good governance, as the oldest and richest democracy (republic in reality)the US is closely watched for how it handles these concerns that attempt to reconcile the rights of the individual against the state, and the majority or other significant groups.
I look forwards to posting more on this area of concern.