TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

• The ‘Necessary and Proper Clause’ gives Congress the power toconduct oversight of executive branch programs and policies.Congressional oversight focuses on crafting and approving proposedbudgets, maintaining the quality of terrorism analysis and determiningthe legality of actions as well as the efficacy of intelligenceand military operations.• Congress controls the budgets of the nation’s national security organizationsthrough annual appropriations bills for defense, intelligenceand homeland security.Article II, however, has been interpreted to concentrate ‘national securitypower’ in the executive branch, as the Founding Fathers recognized the importanceof having a ‘unity of command’ in the President. Thus, Article II hasbeen widely accepted as granting the President the leadership role in craftingforeign and national security policy.• The President’s Commander-in-Chief power has been interpreted toinclude the power over almost all military, intelligence and nationalsecurity functions.• As Commander-in-Chief, the President has authority over state secrets.2 Hence, the White House can control access to classified informationby Congress, the Judiciary and the public.Finally, Article III gives the judicial branch the authority to interpret and determinethe constitutionality of national security laws, evaluated in the contextof cases it hears. While courts have historically tended to defer to theexecutive branch on national security issues, they nevertheless have played anincreasingly important role in shaping the parameters of national security lawover the past decade. Most importantly, the courts can curb executive overreach,as in the 2006 Supreme Court ruling Hamdan v. Rumsfeld. 3In addition to outlining the authorities of each branch of government inthe national security realm, the Constitution also seeks to protect individualsfrom excessive government power. In the counterterrorism context, theFourth Amendment protection “against unreasonable searches and seizures”is an invaluable aspect of the national security legal framework. ParticularlyBelfer Center for Science and International Affairs | Harvard Kennedy School7

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