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How do terrorism and the Iran-Contra hearings relate to the Constitution? My thesis is that there is a tendency for the executive of this or any nation to eschew even constitutionally mandated avenues of problem solving considered to be cumbersome, inefficient, or inimical to the executive’s vision of the national interest in foreign affairs. There is also a tendency to consider one’s own conduct and the conduct of one’s allies and friends to be justified when it is directed at goals deemed by the executive branch to be good. Constitutional provisions based on the checks and balances and separation of powers are sometimes cumbersome and inefficient for resolving some pressing problems. Sometimes Congress disagrees with executive policy. Sometimes the judiciary must consider whether conduct in foreign affairs has met legal or constitutional muster.

Today, there appear to be few more pressing problems than terrorism. Because combating terrorism is so important, there is a tendency for the executive branch to eschew the Constitution and constitutional procedures when they get in the way of policy objectives. This tendency is exacerbated when the battle against terrorism is coupled with other pressing and important policies, such as “keeping communism from gaining another foothold in our hemisphere.” But we must ask whether, in the name of antiterrorism, we have become terrorists; whether, in the name of anticommunism and antitotalitarianism, we have allowed erosion of antitotalitarian protections in our Constitution and constitutional order.

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27 B.Y.U. Studies 197 (1987).