In the aftermath of the terrorist attacks of September 11, 2001, the American constitutional system was shaken by a series of controversies arising out of the aggressive response of the Bush administration. Prominent among these were furious and deeply felt disputes over the use of torture in interrogation, the treatment of detainees, especially at Guantanamo Bay, and domestic surveillance. The Bush administration came under heavy criticism not only for actions initially taken in secret and unauthorized by Congress, but also for the way it led the nation into the authorized war against Iraq in 2003. Many Americans believed that the...

Imagine a world in which there is a robust judicial doctrine of presidential war powers. Legal casebooks would have as many Supreme Court decisions on such Cold War conflicts as Korea, Vietnam, and Central Intelligence Agency (CIA) interventions into Latin America and the Middle East as they do on the commerce clause and the Fourteenth Amendment. All students would be familiar with the series of cases in which the constitutionality of the Vietnam War was finally underwritten by the Supreme Court. They would study the gradual way in which the Court restrained presidential power in the aftermath of Vietnam and...

The beginning of the Cold War was a watershed for U.S. foreign policy. This is the period running roughly from Stalin’s speech in February 1946, appearing to promise a conflict with capitalism, to President Truman’s 1950 decision to intervene in Korea and massively expand the armed forces.¹ As summarized by historian George Herring, “the Truman administration in the short space of seven years carried out a veritable revolution in U.S. foreign policy. It altered the assumptions behind national security policies, launched a wide range of global programs and commitments, and built new institutions to manage the nation’s burgeoning international activities.”²...

Creativity and flexible adaptation to circumstances characterized the Truman administration’s policy responses to the challenges of the post–World War II world until the enormous setback of Chinese intervention in the Korean War. Yet from the standpoint of building government institutions to undergird what came to be known as the “national security state,” the administration’s achievements were halting and uncertain. Once we highlight the inescapable relevance of the Constitution, it becomes apparent that nothing approaching a charter was adopted for the national security state. Fundamental constitutional questions were not resolved or even identified. These questions were especially pressing with respect...

A persistent attention to the lessons of history characterized the men who fought the Cold War. The lesson of Munich was that appeasement led only to greater aggression. Pearl Harbor showed the need for military preparedness and advance warning based on reliable intelligence. The “loss” of China meant that no country could be conceded to the communist side without serious political consequences at home. Amid these many lessons, it is noteworthy that the path to war taken by President Roosevelt described in Chapter 2 was not more influential during the crucial 1963 to 1965 period in which Presidents Kennedy and...

During the 1973 Senate Watergate hearings, President Nixon’s former chief of staff H. R. Haldeman praised Nixon for his many accomplishments in foreign policy—including ending the Cold War!¹ Nixon’s opening to China and his pursuit of détente with the Soviet Union certainly represented a new stage in relations with both countries. But the view that the Cold War was over, quite common during the early 1970s, seemed anachronistic by the end of the decade and certainly as Ronald Reagan took the oath of office in 1981.

Although the Cold War did not end with Richard Nixon, the period I...

Judging by the number of critical works produced by constitutional scholars alone, George W. Bush was one of the most controversial presidents in American history.¹ Yet it has not been easy to discern whether each of the contentious legal issues raised during the Bush administration’s “war on terror”—military commissions, detainee treatment including renditions and harsh interrogation techniques, government surveillance—resonated with the public in the same way that they fascinated journalists, human rights lawyers, and legal scholars. Throughout the Bush administration, it was not clear whether the public understood the details of the various disputes or whether they agreed...

Like a clash of tectonic plates, the conflict between the original constitutional order and the post-1945 order in foreign affairs helped define the Cold War and post–Cold War periods. The persistence of the post-1945 order with its dependence on unilateral presidential leadership in national security matters and presidential decisions for war made outside of the cycle of accountability illustrates how in important respects we have not moved beyond the politics, diplomacy, and national security strategy of the Cold War.

Looking at the Cold War from a high altitude, we can see that Korea and Vietnam, the two major wars...