Legal Memorandum:USA National Security Constitutional Framework

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Legal Memorandum:USA National Security Constitutional Framework

Legal Memorandum

To: Senator Walton

From: Staff Member

Date: 7TH Feb 2016

Re: USA National Security Constitutional Framework

Issue

This memo seeks to summarize to you the constitutional framework and guidelines for the national security law as well as the constitutional powers and limits of each branch of government in the national security matters. Specifically, the memo elucidates the validity, legality, and constitutionality of numerous unilateral actions taken by the President with regard to matters that relate to the national security and the armed forces.

Brief Overview

The Constitution of USA grants judicially, executive, and the Congress different responsibilities and powers over the national security and military actions. However, there have been disputes concerning where one’s power over the war and national security begin and where the others’ ends. The ensuing segment enumerates the power that each branch of the government have over the national security and armed forces.

Discussion

1. Executive Powers And Limits In Relation To National Security

Article II, section 2 of US constitution gives the president the role of being the country’s commander in Chief which is the only substantive function of the government that is specifically assigned to the US president, which relates to military actions and national security. The president is empowered by the US Constitution to wage war, while acting as a commander in chief. However, the US Constitution does not give explicit powers to president over the military actions and national security without the authorization of the Congress (Dycus & Hansen, 2013).

The ability of the president to make a declaration of war without the Congress Authorization is limited by both the constitution and the Power Act. Under the Article 1 section 8, when the president needs to send the national troops to foreign countries for hostile reasons, he has to notify the Congress within the 48 hours, but for the period that exceed 60 days the approval of the Congress is required. However, despite the limited power of the president, the founder of USA entrusted the President with the responsibility of using the military force in the emergency situations. This is enshrined in Article 23, Section 2 cl. 1 which vest all the executive powers to the president as well as the duty to execute the law. Being, the commander in chief the president is given broad

Constitutionality authority to use the military force when responding to foreign policy and national security. The role of the Commander-In –Chief, is a very substantive grant of the authority to US president which makes the scope of president’s authority to commit military to combat is very broad. Various presidents of USA have exercise this power in matter relating to national security and foreign policy with the legality of such actions affirmed by the Court of law. In Zivotofsky v. Kerrythe Court held that in matters of recognition and foreign issues is usually matters that requires the national to speak with one voice, and that that voice is the president (Dycus & Hansen, 2013, Pg 67).

The power of president extends not only to the use of military actions but also to the use of all the necessary measures to ensure that the USA people enjoy the constitutional rights of protection from external and internal aggression. For example in ACLU v. Clapper the Court allowed the NSA’s to collect bulk phone call metadata for security purposes (Dycus & Hansen, 2013, Pg 136). The court ruled that the collection of the data does not violate the Fourth Amendments Rights. It was found out that NSA, (which represents the executive government), is allowed under section 25 of the Patriot Act to collect business records that will help in supporting the national security. As such, the US executive branch of government is vested with the mandate of protecting the USA citizens, and in doing so, the president invokes various powers that comes along with his role as the Commander in Chief.

1. Judicial Powers And Limits In Relation To National Security

The Judiciary branch has the role of interpreting the law. In Clapper v. Amnesty International USA it was found out that the Foreign Intelligence Surveillance Court has the power of authorizing the surveillance (for security purposes) (Dycus & Hansen, 2013,  Pg 136). The USA Courts have made rulings in various cases touching on the national security, which sets precedence for the future cases. As such, the function of the Judiciary is to interpret the spirit and the letter on the constitution and applies it to any contentious issues regarding the national security. FISA Court, which is part of USA judiciary was established to oversee the request on surveillance warrants against the foreign spies in USA by the intelligence services and federal law enforcement. This court was created by the Congress, as part of its legislative powers that aims at supporting the national security.

1. Legislative Powers And Limits In Relation To National Security

Article I, section 8 of the Constitution gives