National Security

The inevitable tension between national security and civil liberties plays out in many constitutional provisions. Beginning with the Alien and Sedition Acts of 1798, and particularly in times of war or crisis, federal and state governments have used their criminal powers to suppress speech critical of government, but it was not till 1919 that this became a First Amendment issue (Schenck v. United States [1919]). Constitutional protections of such speech have waxed and waned with the seriousness of the perceived threat, as the Court moved from the bad tendency test to the clear and present danger test to the more speech-protective incitement test (Brandenburg v. Ohio [1969]).

More recently, First Amendment claims typically resist government efforts to block publication of purportedly sensitive information, such as the Pentagon Papers, already in the hands of the press (New York Times Co. v. United States [1971]), prevent leaks from within the government (Snepp v. United States [1980]), or seek access to information that the government regards as sensitive. As to the last, the Constitution does not expressly declare a ‘‘right to know,’’ and the Supreme Court has never found an implied one, so public access to national security information is governed by a hodgepodge of common law cases, federal statutes such as the Freedom of Information Act and the Privacy Act, and executive orders governing national security information.

Fourth Amendment issues are raised by the Foreign Intelligence Surveillance Act, which lowered the standards for authorizing searches in security investigations, but restricted the uses to which the evidence obtained may be put, and more recently by the USA PATRIOT Act, which removed some of those restrictions and made it easier to conduct certain wiretaps and physical searches. The Fifth Amendment’s indictment clause and the habeas corpus guarantee (Article I, Section 9) became an issue when prisoners were detained without trial at Guantanamo Bay. The due process clause was implicated in Department of the Navy v. Egan [1988], which affirmed a congressional scheme authorizing summary dismissal of federal employes—no hearing, no appeal— in the interests of national security. The Sixth Amendment right to a speedy and public trial has been raised in cases stemming from the Guantanamo detentions. Federalism issues arise occasionally when states enact laws that duplicate, complement, or conflict with federal security law (Hines v. Davidowitz [1941]).

WILLIAM V. DUNLAP

References and Further Reading

  • Dycus, Stephen, Arthur L. Berney, William C. Banks, and Peter Raven-Hansen. National Security Law. 3rd ed. New York: Aspen, 2002 (and annual supplements).
  • Moore, John Norton, and Robert F. Turner, eds. National Security Law. 2nd ed. Durham, NC: Carolina Academic Press, 2005.

Cases and Statutes Cited

  • Brandenburg v. Ohio, 395 U.S. 444 (1969)
  • Department of the Navy v. Egan, 484 U.S. 518 (1988)
  • Hines v. Davidowitz, 312 U.S. 52 (1941)
  • New York Times Co. v. United States, 403 U.S. 713 (1971)
  • Schenck v. United States, 249 U.S. 47 (1919)
  • Snepp v. United States, 444 U.S. 507 (1980)

See also National Security and Freedom of Speech; National Security Prior Restraints; 9/11 and the War on Terrorism

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