Introduction: U.S. National Security, Intelligence and Democracy: From the Church Committee to the War on Terror

Russell Miller

Washington and Lee University - School of Law


Washington & Lee Legal Studies Paper No. 2011-49

During the past half-century, two historic confrontations – one against world-wide communism and the other against international terrorism – have presented American policy makers with the inevitably, difficult challenge of balancing intelligence and security needs against fundamental commitments to constitutional government and human liberty. In 1975, Senator Church led the first independent examination of the American intelligence community’s Cold War record. Senator Church’s determination to expose and correct intelligence agencies’ abuse of civil liberties and violations of law resulted in the publication of 14 volumes of reports. Repeatedly, the Church Committee’s reports refer to the “fundamental principles of “American constitutional government.” Now, following the September 11, 2001terrorist attacks in the United States, Senator Church is back.

The Church Committee’s approach and findings are still relevant today. First, they make clear that advocating constitutional governance, as Senator Church did, requires great courage. Second, a commitment to constitutional governance need not come at the cost of a loss of security. Senator Gary Hart , who was a member of the Church Committee and is now one of America’s leading scholar-statesmen on the issue of national security posits that the compromises made in the War on Terror have their historical precedent in the Cold War abuses documented by the Church committee. Hart is concerned about two main points: the predictability of the extraconstitutional intelligence policies that proliferated, seemingly unchecked, in the Cold War era and which have returned in the reaction to the September 11, 2001 terrors attacks, and that compromises of American constitutional values, whatever short-term intelligence and security benefits they produce, nonetheless erode the most important national security weapon at America’s disposal, “the extraordinary power of America’s respected constitutional principles.” Frederick Schwartz (the Church Committee’s Chief Counsel), Professor Loch K. Johnson (special assistant to Senator Church in his capacity as Chair of the Senate Select Committee in Intelligence), Professor LeRoy Ashby (one of Church’s biographers), and Katherine Aiken (a historian of Idaho politics) each share their opinions on the topic.

In a series of in-depth scholarly commentaries from a diverse set of researchers and advocates, the second part of the book provides comprehensive accounting of the of questionable intelligence and security policies pursued as part of the American reaction to the September 11, 2001 terrorist attacks. Professor David Gray Adler, one of America’s foremost experts on presidential power and the Constitution, frames the broad concern at work in each of the chapters in the book’s second part by tackling the Bush administration’s assertions of power under a theory of “unitary executive.” Professor Richard Seamon, a prolific commentator on the USA PATRIOT Act and other national security issues, strikes a more moderate tone in his examination of the Bush administration’s warrantless domestic surveillance program. Professor Elizabeth Brandt, a scholar of national security issues and an adviser to the American Civil Liberties Union, critically examines the Bush administration’s policies that are aimed at outlawing groups and prosecuting their members. Professor Stephen Dycus, one of the most widely published experts in the field of national security law, takes up the underexamined issue of the domestic activities of America’s military intelligence services. Professor Michael Greenlee writes with a librarian’s passion about national security letters. Professor Alan Williams, a retired Marine colonel and veteran of the National Security Agency, explores a lesser-known front in the War on Terror: internet website activity. Professor Russell Miller then argues that the constitutional balance that must be struck between security and liberty is an organic matter, not readily susceptible to comparative law transplants.

Number of Pages in PDF File: 23

Keywords: Transnational law, international law, comparative law

JEL Classification: K10, K33

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Date posted: January 24, 2012  

Suggested Citation

Miller, Russell, Introduction: U.S. National Security, Intelligence and Democracy: From the Church Committee to the War on Terror (2008). U.S. NATIONAL SECURITY, INTELLIGENCE AND DEMOCRACY: THE LEGACY OF THE CHURCH COMMITTEE, R. Miller, ed., Routledge Taylor & Francis Group, 2008; Washington & Lee Legal Studies Paper No. 2011-49. Available at SSRN: http://ssrn.com/abstract=1990395

Contact Information

Russell Miller (Contact Author)
Washington and Lee University - School of Law ( email )
Lexington, VA 24450
United States

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