Restoring the Balance: War Powers in an Age of Terror

Restoring the Balance

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RESTORING THE BALANCE War Powers in an Age of Terror

Seth Weinberger

PRAEGER An Imprint of ABC-CLIO, LLC

Copyright 2009 by Seth Weinberger All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, except for the inclusion of brief quotations in a review, without prior permission in writing from the publisher. Library of Congress Cataloging-in-Publication Data Weinberger, Seth Harold, 1970– Restoring the balance : war powers in an age of terror / Seth Weinberger. p. cm. Includes bibliographical references and index. ISBN 978-0-313-36039-8 (alk. paper) — ISBN 978-0-313-36040-4 (ebook) 1. War and emergency powers—United States. 2. Terrorism—United States. I. Title. KF5060.W45 2009 342.73'062—dc22 2009016482 13

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This book is also available on the World Wide Web as an eBook. Visit www.abc-clio.com for details. ABC-CLIO, LLC 130 Cremona Drive, P.O. Box 1911 Santa Barbara, California 93116-1911 This book is printed on acid-free paper Manufactured in the United States of America

To Julia. I love you more than words can tell.

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CONTENTS

Acknowledgments

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1. Upsetting the Balance

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2. The Meaning of the Declare War Clause

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3. The Deployment of the Armed Forces and Initiation of Hostilities

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4. Domestic Warrantless Surveillance by the National Security Agency

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5. The Detention and Trials of Suspected Terrorists

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6. Restoring the Balance

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Notes

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Selected Bibliography

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Index

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ACKNOWLEDGMENTS

A book like this, while ultimately the responsibility of the author, is the product of the hard work and dedication of many people. First, I would like to thank the wonderful people at Praeger Press, Greenwood Publishing Group, ABC-CLIO, and Apex CoVantage, in particular Tim Furnish, who is responsible for shepherding this book from start to finish, Robert Hutchinson, Brian Foster, Gary Kuris, Anthony Chiffolo, Valentina Tursini, Nicole Azze, and Jennifer Boelter. I would also like to express my gratitude to the ILSA Journal of International and Comparative Law and the Tulsa Law Review for publishing early versions of these arguments in their fine law journals. Next, I am deeply thankful for my friends and colleagues who at various stages pondered ideas and arguments with me, read drafts of chapters, provided comments and criticism, helped with editing, and offered encouragement when my motivation flagged. My most sincere thanks to Bill Curtis, Geoffrey Manne, Jerry Weinberger, Anthony Clark Arend, Mark V. Tushnet, Timothy Canova, Benjamin A. Kleinerman, and Michael D. Ramsey. I also owe a great deal to my colleagues in the Department of Politics and Government at the University of Puget Sound: David Sousa, Don Share, Patrick O’Neil, William Haltom, Karl Fields, Lisa Ferrari, Alisa Kessel, Carlo Bonura, and Dan Sherman. Our scholarly discussions helped refine many of the arguments herein and their collegial support guided me through the difficult process of writing a first book. I would also like to thank all of my students at Puget Sound and especially those in my Spring 2008 PG 338 course, Constitutional Law of U.S. National Security. The back-and-forth

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of our class discussions was invaluable in helping me work through the early stages of many of the ideas in this book. I am lucky to have such bright, motivated, and engaged students. The University Enrichment Committee of the University of Puget Sound graciously provided funding to help with the production of this book; that money was used to hire Merissa Moeller, and an abler assistant could not have been found. I am grateful for her assistance. This book could not have existed without the education I have been so fortunate to receive at the feet of many of this country’s finest professors. Their wisdom, patience, and pedagogical skills made me the thinker, the scholar, and the teacher that I am today. They have developed in me the unending quest for knowledge with which to understand the world in which we live, the discipline to produce scholarship to improve that world, and the desire to impart that knowledge to the next generations of scholars and practitioners. To Amy Kass, Leon Kass, Nathan Tarcov, Clifford Orwin, Robert Pippin, Charles Gray, Bert Cohler, Wendy Olmsted, Charles Lipson, Anthony Arend, Jan Karski, Loren Thompson, Kenneth Adelman, Keith Payne, Janne Nolan, Bruce Jentleson, Peter Feaver, Chris Gelpi, Joe Grieco, Ruth Grant, Michael Gillespie, and Sanford Kessler, I am indebted to you all beyond repayment. No student could ever have learned from a better or more dedicated host of teachers. I am especially grateful to Allan Bloom and Robert Keohane, who as my mentors in my undergraduate and doctoral studies, respectively, guided me along the thorny paths of scholarly inquiry and helped me learn how to think. This work is a reflection of all that you both have taught me, and I hope that it meets with your approval and lives up to your high standards. This book is a tribute to the memory of Allan Bloom. It has been my life’s greatest privilege to have studied with such a man. To my family, I owe more than words can express. My parents, Jerry and Diane Weinberger, gave me everything I could ask for, including sacrificing so much to send me to the best, and most expensive, college I could find. It was from them that I first learned to love learning, to work hard (although not always as hard as they would have liked), and to be a good person. Most importantly, they were always there for me. Their love and support has meant the world to me. My sister, Davida, has displayed such courage and fortitude throughout the years; she is a constant inspiration to me. I love her more than she knows. To my daughters, Sara and Chloe, I hope that this book inspires you both to do the great things I know that you are capable of, in whatever directions your lives take you. Watching you develop into the women you are today and will yet become is one of the great joys of my life. My dog, Sierra, has been my constant companion for the last nine years. Though she will never read these words, I am grateful

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for her love, devotion, and friendship, particularly when I was ensconced in my apartment during graduate school working on my dissertation. Finally, to my beloved wife, Julia. Your love and friendship are my inspirations. Marrying you was the single best decision of my life. I hope that I can give you all that you have given me and more. I dedicate this book to you. Seth Weinberger Tacoma, WA

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Chapter 1

UPSETTING THE BALANCE

When hijacked airplanes were crashed into the twin towers of the World Trade Center, the Pentagon, and a field in Pennsylvania, the United States entered into a period of war that has lasted almost seven years as of the time of writing and that does not seem likely to end any time soon. Colloquially referred to under the catch-all phrase “war on terror,” the more visible aspects of this conflict include the invasions and subsequent reconstructions of Afghanistan and Iraq, the creation of new bureaucratic structures such as the Department of Homeland Security, the centralization of U.S. intelligence agencies under the Director of National Intelligence, and a worldwide effort to burnish America’s reputation and image to the rest of the world. The war on terrorism is a war unlike any other fought by the United States throughout its history.1 It is a conflict involving armed forces and states, and yet its primary target is a tactic used by nonstate actors. It is a conflict that has, arguably, lasted longer than any other in American history, and yet whether it should be referred to as a war is hotly debated.2 It is a conflict that has no foreseeable end; in fact, it is not even clear exactly what end-state constitutes victory. It is a conflict in which the United States claims the side of moral rectitude, and yet has been accused of deceit, war crimes, torture, and violations of the Constitution. It is a conflict in which the president of the United States has vowed to fight with “every means of diplomacy, every tool of intelligence, every instrument of law enforcement, every financial influence, and every necessary weapon of war,” although few Americans outside of those in the military feel the war in their day-to-day lives.3

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And yet, despite all of the attention paid to the wars in Afghanistan and Iraq, perhaps the most important aspect of the war on terror is flying under the radar screens of most Americans, even though it touches on the most fundamental aspects of political life in the United States. The war on terror has called into question the distribution of power between the executive and legislative branches of government, as each seeks to fight the war as it sees fit. The war on terror follows a litany of presidential actions during the 20th century that have greatly expanded the scope of executive power. As one scholar describes the situation, “the story of American constitutional politics with respect to institutional relations in the context of military conflict has been one of steady erosion of Congress’s power to prevent, confine, or even direct military action and of steady accretion of executive discretion and control.”4 However, the issue goes beyond “the context of military conflict,” as the war on terror has a significant domestic component as well. Unlike many of the military adventures of the last 50 years, the executive branch is claiming both the need and the right to act against terrorists and their associates inside of the United States. Recent controversies over presidential power, such as president George W. Bush’s authorization of the National Security Agency to conduct surveillance on international calls originating or ending in the United States without first obtaining a warrant, illustrate the new and contentious questions being raised. Questions of war powers involve some of the most basic constitutional questions about how American government should operate. The Framers of the Constitution clearly intended to balance power between the branches of government, and the expansion of presidential power that has occurred in the last 50 years, largely in the realm of war powers, has led some to fear that the balance carefully crafted by the Framers is being threatened. That the authors of the Constitution intended the branches to check and balance one another seems unquestionable. As James Madison wrote in Federalist Paper 51: The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary.5

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The Framers did not expect that people, even politicians sworn to serve the public good, would restrain their own ambition. Rather, they expected that government, properly designed, would ensure that no one branch of government or individual became too powerful. This basic principle of checks and balances is, perhaps, even more applicable during wartime, when “reason and history both suggest that [the proper balance between liberty and order] shifts to some degree in favor of order.”6 The Constitution does tell us, to some degree, how the branches should pursue that proper balance. The president is given the power to command the armed forces, but the power to declare war, to make rules to govern the armed forces, and to fund the army, is given to Congress. Congress has the authority to control foreign commerce, while the president has the power to make treaties (subject to the advice and consent of the Senate). But, ultimately, “there is no clear, exclusive textual commitment of all the war, defense, and foreign-affairs powers to either Congress or the President.”7 This ambiguity has led to the present debate over the scope of presidential war powers and it is this ambiguity that this work seeks to clarify. THE NEED FOR BALANCE IN AN AGE OF TERROR The 20th century has seen a massive shift in the balance of war powers from Congress to the president, spurred by a transformation of the nature of international politics and the rise of the United States as a global military and political superpower and complemented by a general expansion of the power, size, and scope of the executive branch. The vast majority of the uses of the American armed forces have occurred since 1900, and many of the more recent uses of force have occurred in the absence of any explicit congressional authorization. In 1973, in response to the growth of presidential war powers in general and frustration with its inability to rein in the Vietnam War specifically, Congress passed the War Powers Resolution in an attempt to reassert legislative control of the war powers.8 However, the impact of the War Powers Resolution has been minimal, as every American president has declared it to be unconstitutional and, therefore, that he will not be bound by its dictates. To wit, “Kosovo is just one entry on a long list of presidential uses of force since the passage of the [War Powers Resolution] that occurred without benefit of congressional authorization. Even an abbreviated litany would have to include Lebanon, Iran, Grenada, the Persian Gulf (in 1987–88), Libya, Panama, Somalia, Iraq (in 1993 and throughout the ‘no-fly-zone’ period), Haiti, Bosnia, Sudan, and Afghanistan (in 1998).”9 However, in its efforts to protect the United States in the wake of the September 11 attacks, the Bush administration has tried to expand the scope

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and breadth of executive power beyond the ability to deploy troops without congressional authorization. Time and time again, when the constitutionality of its policies has been challenged, the executive branch has responded with claims of inherent presidential power that give it the authority to take actions necessary to defend the country from international terrorism. In Hamdan v. Rumsfeld, the president argued that his inherent war powers included the authority to create military commissions to try suspected members of al Qaeda, even without congressional authorization, “because that authority is a necessary and longstanding component of [the president’s] war powers.”10 Similarly, attorney general Alberto Gonzales argued that warrantless domestic wiretapping by the National Security Agency “[is] supported by the President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs.”11 Opponents of broad presidential war powers see these recent moves by the Bush administration as fundamentally dangerous to the delicate balance of power between Congress and the executive branch. Jordan Paust of the Law Center of the University of Houston refers to the claim of inherent presidential authority in such instances as “nihilistic” and “patently unconstitutional and unacceptable.”12 Geoffrey Stone of the University of Chicago Law School argues that the use of warrantless wiretapping by the president, claims of inherent authority to do so notwithstanding, is a “blatant and arrogant violation of American law.”13 The Supreme Court has seemed to side with the opponents of President Bush, and has struck down, despite pleas by the president for deference on issues of national security and claims of inherent authority, every action that it has reviewed.14 What do these challenges and defeats mean for the overall distribution of war powers between the president and Congress? On the one hand, the powers claimed by the executive branch would give the president unprecedented powers for an indefinite period as it is hard to imagine that terrorism, a tactic rather than an enemy, can ever be defeated. Indeed, President Bush recognized the likelihood of an indefinite war on terror in the 2002 National Security Strategy of the United States where he stated that “war against terrorists of global reach is a global enterprise of uncertain duration.”15 Among the war powers the president has claimed is the right to use unilateral, preemptive military force against “terrorists of global reach and any terrorist or state sponsor of terrorism which attempts to gain or use weapons of mass destruction or their precursors,” the right to detain citizens and aliens suspected of involvement in al Qaeda or other terrorist organizations for the duration of the conflict (which in an indefinite conflict could be indefinitely), the right to conduct surveillance against U.S. citizens without obtaining a warrant, and the right to use controversial

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methods of coercive interrogation including some, such as waterboarding, considered by many to constitute torture.16 Regardless of the efficacy or constitutionality of these actions during wartime, none of them has traditionally been considered part of the president’s repertoire of powers in peacetime. It is the president’s inherent authority as commander in chief to protect the state during wartime that provides the basis for such claims of power during times of crisis, such as the war on terrorism. If one believes in constitutional democracy and the need for executive power to be restrained so as to protect individual liberties, the actions by the Bush administration described above, among others, are cause for concern. Even architects of the U.S. strategy recognize the threats implicit in such policies. In his memoir of the planning of the war on terrorism, former under secretary of defense for policy Douglas J. Feith writes that: [The doctrine of anticipatory self-defense] appears to authorize the unchecked use of military power against any country that the U.S. president dislikes or suspects. . . . The fear of unchecked power resonates deeply in the American political tradition—if there was one thing the Founding Fathers feared, it was the idea of unchecked political power. The U.S. Constitution was therefore constructed as a system of checks and balances.17

It is exactly that fear—that the system of checks and balances enshrined in the Constitution is at risk—that causes people to worry about the claims of broad war powers by the president. As Gene Healy of the Cato Institute notes, even “conservatives who trust George W. Bush not to abuse the vast authority he claims might not be as comfortable with those powers in the hands of his predecessor or his successor.”18 On the other hand, it must be recognized that the threat of international terrorism is no idle matter. Terrorism of the kind that manifested itself on September 11, 2001, is a threat unlike any other that the United States, or any other country, has ever faced. The scale of the attacks, as well as the threat of future attacks, swept away the old paradigm of treating terrorism as a problem for the criminal justice system.19 Additionally, there are fears that using the peacetime system of criminal law in the war on terrorism threatens to “corrupt the foundations of the criminal law itself.”20 The constitutional system of checks and balances would suggest that presidential actions should be authorized by Congress, but while congressional deliberation may bring more opinions to bear on potential policies and solutions, that deliberativeness comes at the price of the speed and centralized decision making that is characteristic of the unitary executive. This is especially true when elements of the war on terrorism resemble more traditional wars, as do the military operations in Afghanistan and Iraq. As the U.S. Supreme Court found in the 1936 Curtiss-Wright case, “the

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President [must have] a degree of discretion and freedom from statutory restriction [in the conduct of international relations].”21 In one scholar’s interpretation, “the Court [in Curtiss-Wright] concluded that the President must have the general power to conduct the nation’s foreign relations. The Court reasoned that the President must have a general foreign relations power because the executive branch can most effectively and efficiently perform that function in the overall national interest.”22 The question of allocating war powers between the president and Congress is, thus, a critical one. If too much power is concentrated in the hands of the executive, the country risks undermining basic constitutional protections of individual freedoms, creating an imperial presidency, and eroding the democratic nature of the republic through the implementation of policies that would not withstand the scrutiny of the government’s legislative bodies. If too much of a role is given to Congress, the country may not be able effectively to develop policies to protect itself. Thus there is a need to develop a balanced theory of presidential and congressional war powers. It is this task that this book attempts to achieve. The goal of any theory of balanced war powers must be to develop a clear and practical theory that is consistent with the general constitutional allocation of authority. But why do we need a theory of war powers at all? What is wrong with a system where the president acts as he sees fit and either Congress or the judiciary is free to try to counter those actions? Such a model poses several problems for the formulation of effective policy. First, such a system lacks predictability. It is neither desirable nor efficient to try to craft policy when it is unclear whether those policies will be seen as legitimate and legal. Second, the rejection of presidential policies can undermine the overall legitimacy of the executive branch, which in the war on terror has “contributed to a public perception that [the administration’s] policy for dealing with captured terrorists is in disarray and, still worse, that the United States is trenching on liberties as never before.”23 Third, an overreliance on presidential power in times of crisis runs the risk of seeing that power erode as the crisis and the presidency both age. “All administrations tend to lose power as they age, and wars run a high risk of exacerbating that loss as they become progressively less popular.”24 Finally, such a system lends itself to a situation where Congress drops out of the picture, unwilling to challenge the president and take responsibility for policies that could potentially fail. And, as Jack Goldsmith warns, when, rather than having policy made in consultation between the political branches, it is left to the courts to determine the wisdom and legality of policy, policy makers will become afraid that their decisions will leave them exposed to legal action after the fact.25 This then tends to result in the conflation of two questions that need to remain distinct: What policies are legally

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permissible, and what policies are worth pursuing? When the two questions collapse into each other, policy becomes defined, rather than guided, by legalistic concerns, which inevitably makes for bad policy.26 Having a clear understanding of the proper balancing of war powers in place before the making of policy would help avoid all of these problems by making it easier for all involved parties to formulate coherent strategies without fear of overstepping political bounds, having policies struck down as illegal or unconstitutional, or compromising public legitimacy. Chapter 2 explicates a clear, coherent, and constitutionally sound argument about how war powers should be balanced between the executive and legislative branches of the U.S. government—an argument supported by constitutional theory, numerous examples of presidential and congressional practice, and judicial interpretation in multiple cases. The theory rests on the rehabilitation of a congressional power that has fallen into disuse over time—the formal declaration of war. Despite the constitutional grant to Congress of the power to declare war, war has only been formally declared in 5 conflicts, even though U.S. armed forces have been involved in more than 200 conflicts.27 An additional 11 conflicts have been explicitly authorized by Congress by means short of a formal declaration of war.28 However, that still leaves more than 175 instances of the use of American armed forces without express authorization from Congress, including the Korean War (1950–1953), the U.S. invasion of Panama (1989), the U.S. intervention in Somalia (1993), and the U.S. participation in the NATO operation against Kosovo (1999).29 It is this disparity that is a major source of the current imbalance of war powers. The transformation of the nature of the wars of the 20th century from primarily limited wars to total wars encouraged the shift in the balance of war powers from Congress to the president, but that nature is not replicated in the war on terrorism.30 In the words of President Bush: This war will not be like the war against Iraq a decade ago, with a decisive liberation of territory and a swift conclusion. It will not look like the air war above Kosovo two years ago, where no ground troops were used and not a single American was lost in combat. Our response involves far more than instant retaliation and isolated strikes. Americans should not expect one battle, but a lengthy campaign, unlike any other we have ever seen. It may include dramatic strikes, visible on TV, and covert operations, secret even in success.31

The new dynamics of the war on terrorism—its indefinite duration, its unclear targets, its domestic components—call into question the use of unchecked presidential power. Adhering to the 20th-century paradigm

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of Congress allowing the president to prosecute wars more or less as he sees fit threatens to undermine the U.S. effort to deal with al Qaeda and other international terrorist organizations by leaving policy outcomes in limbo to be challenged in U.S. courts. Reliance on the courts, rather than on Congress, to challenge and balance the executive branch threatens to weaken the power of government overall. As Benjamin Kleinerman of Michigan State University notes, “[the American] system depends on serious contestation between the executive and the legislative branches. To the extent that discretionary policy truly does and should lie in the executive branch, its existence must be checked by a politically vibrant Congress which seeks both to constrain the parameters of such discretion and to contest, when necessary, its misuse.”32 The danger of this is that “a Supreme Court that understands itself as the authoritative and final voice of the Constitution tends to eviscerate such contestation by distancing the people from their Constitution and thereby encouraging congressional lassitude and irresponsibility.”33 There are other reasons that the judicial branch should not be relied on as the primary check on executive power. First, the judicial branch is not a policy-making entity, and often lacks both expertise and responsibility to make decisions over policy matters. This difficulty is reflected in the judicial doctrine known as the “political question,” which is invoked when the courts believe that the issue at hand is one better resolved by the political branches than by the courts. In Baker v. Carr, the Supreme Court defined a test for determining when an issue should be deemed a political question, including whether the case involves a “textually demonstrable constitutional commitment of the issue” to one of the other branches of government, a “lack of a judicially discoverable and manageable standard” for resolving the case, or “the impossibility of deciding without an initial policy determination of a kind clear for nonjudicial discretion.”34 In short, the courts are to determine the legality of an action, not the political wisdom of a particular policy. Additionally, the courts are the least democratic of the branches of government and are insulated from public opinion to a degree that argues against their involvement in policy making. The judiciary is also fundamentally a reactive, rather than proactive, institution. Courts will not be able to participate in the formulation of policy, but only in striking down illegal or unconstitutional policies. This means that “Congress, by contrast to the Supreme Court, better guards against executive abuse.”35 While Congress is free to wrangle with the president over rules and precedents that shape the way in which each wield power, “the judiciary is almost forced to arrive either at an arbitrary and politically disastrous standard according to which discretion can never be exercised or at a ‘flexible’ rule by

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which it can be . . . In short, the judiciary simply cannot arrive at a standard which will meaningfully constrain executive power.”36 Finally, if the war on terror is indeed to be a long, and perhaps indefinite, war, it will require the development of new legal structures and doctrines. According to Benjamin Wittes: The eventual design of a mature legal architecture for this war cannot come into being chiefly through dialogue between the executive and judicial branches—the president grasping and the courts slapping his hand. Neither unilateral rule making on the part of the president nor judicial review of whatever rules he makes up can mold a stable long-term architecture for a war that defies all of the usual norms of war. The only institution capable of delivering such a body of law is the Congress of the United States—the very branch that has been, in the years since September 11, 2001, least active and involved in the process of designing the rules.37

This inactivity on the part of Congress has, according to Wittes, “been unfortunate at a policy level, where . . . Congress has left the courts to split the difference between polar arguments to which few Americans would actually sign on and others that badly frame the terms of what should be a much broader debate.”38 It should be much preferred for the representative branches of government—the president and Congress—to deliberate both with and against one another to develop sound and lasting policies and to check each other’s power. This is why it is necessary to develop a theory that helps us understand how such policies are to be made and how executive power is to be checked and balanced. The new model presented here allows the president the flexibility and authority to use military force abroad with only a few, albeit important, congressional obstacles in his way. But those obstacles mean that there will be serious contestations between the Congress and the president over proposed domestic policies associated with the president’s exercise of his war powers. As will be shown, it is both politically vital and constitutionally necessary that the president be able to commit the country’s armed forces more or less as he sees fit. However, chapter 2 will also make it clear how the limits of that power are to be understood. The power to declare war maintains in congressional hands a critical check on the potential abuse of power by the executive branch: the power to legislate. While it seems tautological that power to legislate should remain with the legislative branch rather than the executive, the domestic nature of the war on terror has made it necessary to reinforce the division between executive and legislative powers. Many of the policies of the war on terror, and many of those that are most potentially damaging to domestic civil liberties and the balance of power in the government, are domestic acts that affect the

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legal status of individuals, such as the authorization of warrantless surveillance, the indefinite detention of individuals suspected of membership in international terrorist organizations, and the use of military tribunals to try those individuals. In peacetime, such policies would clearly and inarguably be determined by Congress through deliberation and legislation. But in the war on terrorism, George W. Bush has claimed inherent authority as president of the United States to implement these policies without authorization, approval, or even consultation with Congress. Restoring meaning to the power to declare war offers a way to restore congressional power without infringing on the president’s ability to deploy troops and conduct military operations abroad without undue congressional interference. As will be shown below, the power to declare war is not about the command, control, and deployment of the armed forces of the United States; rather it is about altering the legal domestic status of the United States from a peacetime status to a wartime footing. A formal declaration of war represents an acknowledgement from Congress that the gravity and risk of a military conflict demands that extraordinary powers be given to the president so that the security of the country may be protected. With such powers, presidents historically have been able to take such legislative actions as ordering the internment of Japanese-American citizens during World War II, the suspension of habeas corpus during the Civil War, the imposition of rationing and censorship laws, arresting enemy aliens, seizing domestic transportation systems, and authorizing warrantless wiretapping.39 Absent a declaration, however, the peacetime paradigm of Congress as the law-making body holds, and the president is limited to his role as executor, not creator, of law. Thus, chapter 2 presents the declare war clause of the U.S. Constitution as a way to restore the balance of war powers between the president and Congress.40 As a means of interpreting the Constitution correctly, arguing for a meaningful and important role for a constitutional power that has only been invoked five times may not seem like a significant realignment of governmental power, but doing so draws a bright line between acceptable and unacceptable uses of executive power by the president. A declaration of war from Congress transfers legislative powers to the president so that the crisis facing the state might be successfully countered. Many of the most controversial actions taken by president George W. Bush to defend the United States against terrorism are ones that would normally, in peacetime, be considered legislative acts and thereby under the purview of Congress. According to the theory propounded herein, these are actions that, in the absence of a declaration of war, should be beyond the scope of unilateral presidential power.

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This distinction between the powers of the legislative branch and those of the executive branch is vital for ensuring a balance of war powers. The notion that executive and legislative powers must be separated is an essential element of American constitutional democracy. In Federalist Paper 47, James Madison wrote “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”41 What this means, Madison explained, is that the president “in whom the whole executive power resides cannot of himself make a law,” while “the entire legislature can exercise no executive prerogative.”42 The nature of the legislative power is, according to Alexander Hamilton, nothing more than “a power of making laws.”43 The essence of law is the authority to alter the status of individuals under the power of government; this is why it is critical to separate the power to make laws from the power to enforce them. As John Locke tells us: It may be too great a temptation to human frailty apt to grasp at power for the same persons who have the power of making laws to have in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make and suit the law, both in its making and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the community, contrary to the ends of society and government.44

Madison, Hamilton, and Locke sum up the fears expressed by many over the exercises of power by President Bush in the war on terror. As one prominent critic put it, President Bush is trying to “eliminate nearly all the checks and balances that have been traditionally understood to limit the power of the president.”45 However, as a result of the growth of American society and the resulting increase in the size, complexity, scope, and power of the government, “Congress has delegated vast legislative powers to the executive branch.”46 This move, while perhaps necessary to facilitate the smooth operation of government, has muddied the distinction between actions of a legislative nature and those of an executive nature. In peacetime, this blurring of boundaries can cause problems when the executive branch, now responsible for “developing and implementing the overwhelming majority of all federal regulations,” acts in a manner inconsistent with the political priorities of other governmental bodies.47 In time of crisis, the divide becomes even more important, as the policies imposed by the executive branch to protect the nation often touch on the most fundamental issue at stake in the separation of powers: individual civil liberties.

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The issues at stake in the war on terrorism, such as the ability of the government to conduct surveillance of American citizens and residents without first obtaining a warrant, or the power to detain individuals suspected of involvement with international terrorism indefinitely and to eventually subject them to trial by military commission, touch on the most basic of civil liberties, such as the right to not be subjected to government scrutiny without cause and the right to be able to challenge one’s detention. The gravity of these issues suggests that they should not automatically devolve to the president upon the executive’s declaration of a crisis situation, particularly when the crisis is as unclear and disputed as is the threat posed to the nation by international terrorism. If the separation of legislative from executive power is to be breached, it should require that the legislative branch recognize the need to do so and, as a body, agree to do so. The legislative powers inherent in regulation that have been assumed by the presidency have been granted to the executive branch via legislation, not claimed by executive fiat. The same needs to be true of the legislative powers claimed by the president during the war on terrorism. The formal declaration of war preserves this role for Congress, allowing the legislative branch, in times of clear and present danger to the United States, to acknowledge the gravity of the threat to the nation and to pass a blanket measure that cedes broad legislative power to the president, permitting him to effectively and efficiently defend the country. The need to clearly understand how war powers are to be separated, balanced, and checked is of vital importance in the context of the war on terror, given its intrusions into American domestic politics. Using the arguments of the American Founders, numerous federal court decisions, and historical precedents from both the president and Congress, I shall develop an argument about the nature of American war powers that not only presents a theory that is constitutionally sound, but also one that best describes the political behavior of the government as a whole. Chapters 3, 4, and 5 examine uses of presidential power in the war on terrorism in light of the balanced theory of war powers developed in chapter 2, arguing which should be understood as belonging to the president and which should be considered legislative and thus, barring a declaration of war, under the purview of Congress. Chapter 3 looks at the power to send U.S. armed forces into combat abroad, an issue at the heart of debates, both academic and political, over presidential war powers. Supporters of broad presidential powers claim that the president’s inherent authority as commander in chief of the armed forces gives him power to deploy forces without congressional authorization. Those who argue for robust congressional war powers argue that Congress’s authority to declare war encompasses the deployment of U.S. troops. This is also the area

UPSETTING THE BALANCE

13

in which Congress has most tried to assert itself, passing the War Powers Resolution in 1973, which mandated congressional approval for all presidential uses of force lasting more than 60 days. The war in Iraq has brought this dispute to the forefront of American politics. Several times, when asked by the president to authorize funding for the troops deployed in Iraq, Congress has sought to insert language into the appropriation bills that would either force the president to bring the troops home or impose regulations that would, ultimately, have the effect of curtailing the president’s ability to maintain the troop presence at the desired levels. Ultimately, each effort by Congress failed, and the troop presence in Iraq persists at high levels, and even increased during the surge of 2007. But the question of whether Congress does have the authority to restrain the president’s deployment of troops has not been resolved. While the Founders’ intentions concerning the authority to commit the United States to armed hostilities are unclear, case law and historical precedent are not. The actions and decisions of Congress, the president, and the Supreme Court have, over the last 60 years in particular, created an understanding that the president is free to deploy troops as he sees fit even without explicit congressional authorization. Congress does retain some notable and powerful checks on troop deployment, most importantly the power of the purse, but by and large the question of who controls the use of the armed forces of the United States has been answered in favor of the president. Chapter 3 examines this in relation to the war in Iraq, demonstrating how congressional attempts to restrain the president are not legitimate means of ending the war. Congress does have the power to force the president’s hand, but it cannot do so by ordering the president to “bring the boys home.” Sending U.S. troops into combat is not a power that should be under the authority of the legislative branch; rather it should be understood as being firmly in the sphere of executive action and clearly belonging in the toolbox of the president. Chapter 4 explores the legality of the warrantless surveillance program authorized by President Bush. The program, created shortly after September 11, allowed the National Security Agency to conduct warrantless wiretapping operations within the United States against “persons linked to al Qaeda or related terrorist organizations.”48 The program was revealed by investigative reporters from the New York Times on December 16, 2005, and led to accusations that the president was violating the Constitution and taking illegal license with civil liberties, and was ultimately struck down in a federal district court as unconstitutional.49 Judge Anna Diggs Taylor of the Eastern District of Michigan rejected the president’s claim of inherent authority to authorize such a program, arguing that the program violated

14

RESTORING THE BALANCE

the will of Congress and that because “there are no hereditary kings in America” the president had no right to go around Congress.50 The balance struck by the theory presented here argues that Judge Taylor was correct in striking down the NSA program. As chapter 4 demonstrates, domestic surveillance is best understood as legislative in nature, and thus, in the absence of a declaration of war, an area that should be under the control of Congress. The case of warrantless domestic wiretapping provides an excellent example of the practical implications of the balance outlined herein. Even if the president has the authority to respond to a crisis by sending American soldiers into combat situations, that does not necessarily imply that the president should have the power unilaterally to take any and all actions deemed necessary. Congress’s role as a legislative body is to oversee the legal status of American citizens, and actions that affect that status require congressional consultation and approval. Chapter 5 considers the detention and trial of individuals held by the United States on suspicion of membership in or connection to al Qaeda and other international terrorist organizations. These cases raise the same kinds of issues as the example of warrantless surveillance, although since they do not directly affect many American citizens, the questions of enemy combatant status and the use of military commissions have not raised as many fears about diminishing civil liberties as have worries over rampant government eavesdropping. As a result of the wars in Afghanistan and Iraq, the United States has found itself with custody of scores of people suspected of involvement with al Qaeda and other terrorist groups. What to do with these individuals has been the subject of much debate and several Supreme Court decisions. To begin with, President Bush sought the right to detain indefinitely as enemy combatants those so suspected without any judicial review or right to challenge the detention. In the cases Hamdi v. Rumsfeld and Rasul v. Bush—which dealt with American citizens and aliens, respectively—the Supreme Court ruled that those designated as enemy combatants being held indefinitely deserved an opportunity to contest their status before a competent authority other than the president.51 After those decisions, President Bush moved to create military tribunals to hear the cases of those accused of criminal activities in connection with international terrorism. In Hamdan v. Rumsfeld, the Supreme Court dealt the executive branch another defeat, ruling that the president lacked the power to create military tribunals without congressional approval. In all of these cases, the president, as with wiretapping and deploying U.S. troops, based his right to act on claims of inherent authority as commander in chief of the armed forces of the United States. In regard to detention and trial of suspected terrorists, as with domestic warrantless surveillance, the president’s claims of authority were rejected.

UPSETTING THE BALANCE

15

While it may be difficult to discern a bright line between actions of an executive nature and those that are fundamentally legislative, the preservation of republican government and the protection of civil liberties demands that a line be drawn. Policies concerning an individual’s literal freedom, his right to challenge his detention, and his right to receive a fair trial are fundamental issues of individual liberty and as such are best classified as legislative actions and squarely within the domain of Congress. Without explicit congressional authorization, the president is no more free during times of armed conflict to alter the rules governing detention and trial unilaterally than he is in peacetime. Chapter 5 places the detention and trial of suspected terrorists in the same sphere as domestic surveillance—an act that, in the absence of an explicit congressional authorization, is outside of the powers of the president. Chapter 2 provides the constitutional and theoretical argument underpinning the proposed distribution of powers between the president and Congress, while chapters 3, 4, and 5 show in what ways the actions of the president and Congress, as well as the decisions of the judicial branch, adhere to the logic of the proposed balance of war powers. Together, they reveal the balance of war powers that this book seeks to describe. As mentioned earlier, not only does this book seek to reveal the allocation of powers that should be according to the Constitution and intentions of the Founders, but it also describes the framework that guides executive, legislative, and judicial branches alike, even if they are not consciously aware of the overarching logic to which their decisions and actions often conform. According to this balance, the president possesses unilateral authority to commit American soldiers in combat, while Congress retains control of actions, particularly domestic ones, that touch on the legal status of individuals. The ultimate outcomes of the struggles over war powers, as will be shown in chapters 3, 4, and 5, fit with the theory presented in chapter 2. However, because the branches of government are not operating explicitly under the balanced theory of war powers, the processes by which the outcomes are achieved are not only inefficient, but potentially ephemeral. As it stands now, it is the judicial branch, rather than Congress, that serves as the bulwark that protects individual domestic liberties from encroachments by an executive branch seeking to defend the nation. As mentioned earlier, relying on the courts, rather than Congress, in this role can be dangerous. Instead of deliberating on how best to protect domestic liberty, Congress has wasted its time and resources in a fight that it is neither likely nor well-suited to win by contesting the president’s right and power to deploy troops. This contestation not only makes for bad policy making but leaves the outcome of policies dependent on temporary and shifting distributions of political power. If the composition of the Supreme Court changes to

16

RESTORING THE BALANCE

favor one position or the other, if the presidency becomes weakened or, perhaps, even stronger than it is now, or if Congress experiences a resurgence or declines even more than it has, the delicate balance that has been reached might be upset. When decisions over war powers and the ensuing decisions are made in an ad hoc manner, rather than according to a clear and coherent theory, there is a serious threat of either hamstringing the president’s ability to protect the country or of eviscerating the constitutional protection of domestic civil liberties. The balance that this theory strikes is both theoretically defensible and eminently practical. It recognizes that the executive branch is the arm of government best suited to commanding military operations and that the modern political situation, and the war on terrorism in particular, demands both the flexibility and speed of decision making enjoyed by the president. However, policies that fundamentally alter the law and the civil liberties of individuals require more deliberation and consideration, as well as the input of those public representatives tasked with lawmaking. The current imbalance of war powers has created unnecessary mistrust and counterproductive competition between the president and Congress. With attention focused on the importance of the right to deploy force, the executive and legislative branches have found themselves locked in seemingly neverending struggles that always seem to be resolved in favor of the president. Restoring the balance to war powers could end this needless antagonism over troop deployments in favor of encouraging cooperation and consultation over the issues that affect the legal status of individuals. Dividing war powers in this way provides the country with the means to protect itself physically from external threats and structurally from internal ones. It also forges a middle road between, on one side, those who see the threat posed to the United States by international Islamic terror organizations as an existential one and dismiss fears of growing executive power and, on the other, those who see the expansion of presidential power as an overreaction to an exaggerated threat that itself poses the larger and more real danger of undermining American democracy. This book argues both that the challenge posed by al Qaeda and other such organizations is real and dangerous, and that the traditional suspicion of and constitutional obstacles to unchecked power and unlimited government must be preserved.

Chapter 2

THE MEANING OF THE DECLARE WAR CLAUSE

Benjamin Franklin wrote (although it is likely apocryphal) that “those who would give up essential liberty to purchase a little temporary security deserve neither liberty nor security.”1 In his dissent from the majority opinion in Terminiello v. Chicago, Supreme Court Justice Robert H. Jackson, seemingly countering Franklin, wrote that “the choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”2 These two quotations summarize what lies at the heart of concerns over presidential war powers: At one end of the spectrum are those who fear an unfettered president will sacrifice America’s hard-earned liberties to implement policies which provide dubious improvements in security against an over-hyped threat. At the other end are those who fear that an overzealous commitment to openness and civil liberties and paranoid limitations on executive power will leave the country vulnerable to attacks from an implacable threat that seeks to exploit those liberties. Evidence of this polarization can be seen in survey data about the American public’s attitude towards the trade-off between civil liberties and national security. A 2006 CNN/USA Today/Gallup poll found that 50 percent of Americans believe that the NSA’s warrantless wiretapping program was justified, while 46 percent said that it was wrong. Similarly, 38 percent of those polled claimed that the Bush administration had gone too far in restricting civil liberties in favor of protecting the country. Forty percent said

18

RESTORING THE BALANCE

that the president’s policies were “about right” while 19 percent believed the president had not gone far enough.3 A 2007 poll conducted for the American Civil Liberties Union found that 49 percent of likely voters “are unhappy that Congress has not done enough to check presidential abuses of power” while 25 percent “think Congress has interfered too much.”4 The Supreme Court has recognized this tension as well, noting in its decision in Hamdi v. Rumsfeld that: [S]triking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat [the war on terrorism, and in Afghanistan in particular]. But it is equally vital that our calculus not give short shrift to the values that this country holds dear. . . . It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.5

Unfortunately, the Bush administration has not done much to bridge this divide, often choosing to fight the war on terrorism through unilateral exercises of power rather than relying on consultation and compromise.6 According to Jack Goldsmith, who served as the assistant attorney general in the Department of Justice’s Office of Legal Counsel from October 2003 to June 2004, “the administration has not worried itself too much with issues of trust and credibility that are so important to political success generally, and especially important when the public the president is trying to lead is divided and unsure about the nature of the threat it faces.”7 Goldsmith acknowledges the severity of the threat posed to the United States by international terrorists, noting that “the enemy in this war . . . [is] potentially as lethal as any [the United States has] ever fought.”8 However, he argues that while President Bush has employed many of the same tools as presidents such as Franklin Roosevelt and Abraham Lincoln used to deal with the threats they faced, the manner in which President Bush has pursued the war on terror has “ignored the soft factors of legitimation— consultation, deliberation, the appearance of deference, and credible expressions of public concern for constitutional and international values—in his dealing with Congress, the Courts, and allies.”9 The Bush administration has made no secret of its belief that the president possesses the inherent constitutional authority to act as he sees fit to counter the threat from international terrorism faced by the country. Goldsmith notes that the counsels to the president and the vice president, Alberto Gonzales (before his stint as attorney general) and David Addington respectively, believed that the president had the constitutional power, and duty, to “exercise prerogative powers to do what is necessary in an emergency to save the country.”10 A memo for the president titled

THE MEANING OF THE DECLARE WAR CLAUSE

19

“The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them” argues that “it is clear that Congress’ power to declare war does not constrain the President’s independent and plenary constitutional authority over the use of military force.”11 As attorney general, Alberto Gonzales argued that the president has “inherent constitutional authority to conduct warrantless searches and surveillance within the United States for foreign intelligence purposes.”12 And in its brief before the Supreme Court in Hamdan v. Rumsfeld, the executive branch argued that the president has inherent authority to convene military commissions, “even in the absence of any statutory authorization, because that authority is a necessary and longstanding component of his war powers.”13 In all of these cases, the legal authorities of the Bush administration argued that the actions in question had in fact been approved by Congress, by virtue of the Authorizations for the Use of Military Force (AUMF) passed by Congress prior to the invasions of Afghanistan and Iraq, but each also made it clear that such approval was not necessary, as the president possessed inherent powers to act as commander in chief of the armed forces of the United States in time of war. In essence, the president’s argument in all of these cases has been that the country is at war, and when the country is at war, the president possesses broad and unchecked power to prosecute that war as he deems necessary for the defense of the nation. Certainly, presidents during wars past have claimed similar broadly defined and expanded powers. During the Civil War, Abraham Lincoln suspended the writ of habeas corpus in apparent violation of the Constitution, which unambiguously gives the power to suspend habeas corpus to Congress, and ignored court decisions barring him from doing so.14 In World War I, Woodrow Wilson used the Espionage Act, passed by Congress subsequent to the declaration of war, “to suppress harsh criticism of the war effort.”15 And in perhaps the most infamous case of a president breaching civil liberties for military necessity, during World War II Franklin Delano Roosevelt ordered the exclusion from the West Coast and subsequent internment of hundreds of thousands of American citizens of Japanese descent.16 With respect to the internment, Roosevelt’s attorney general, Francis Biddle, wrote that “I do not think [Roosevelt] was much concerned with the gravity or implications of this step. He was never theoretical about things. What must be done to defend the country must be done.”17 In some of these cases, Congress was consulted before the policy was implemented, in some consultation occurred after the action was taken, and in some instances, the president acted without any congressional consultation whatsoever. But in all of these instances, the president claimed powers not normally available to him in peacetime in order to protect the country during wartime.

20

RESTORING THE BALANCE

But the war on terror is fundamentally different from the other wars in which presidents have demanded extraordinary presidential powers. While President Bush has compared the war on terrorism to the great conflicts of the 20th century, the war on terrorism is not being fought on the same scale as were those wars.18 The war on terrorism “has brought no draft, little mobilization, relatively few casualties, and no shortages, rationing, or economic controls.”19 Nonetheless, due to the ephemeral and decentralized nature of international terrorism, the domestic arena is a major theater of operations for protecting the country. As President Bush noted in a December 19, 2005 press conference, “al Qaeda [is] not a conventional enemy. Some lived in our cities and communities, and communicated from here in America to plot and plan with bin Laden’s lieutenants in Afghanistan, Pakistan and elsewhere.”20 Attorney General Gonzales argues that “finding al Qaeda sleeper agents in the United States remains one of the paramount concerns in the War on Terror.”21 Furthermore, the war on terror has no discernable front lines or primary theater of operations, it has no conceivable end date, and it has few metrics for defining victory. In the words of a former U.S. ambassador to Pakistan and Turkey, “a ‘war on terror’ is a war without an end in sight, without an exit strategy, with enemies defined not by their aims but by their tactics.”22 Finally, and most importantly for the argument herein, unlike World Wars I and II, war has not been declared by the U.S. Congress.23 It is the absence, or presence, of a formal declaration of war on which hangs the balance of presidential and congressional war powers. The power to declare war, when properly understood, provides Congress with a powerful check on presidential power and a vital means of safeguarding domestic civil liberties. A declaration of war, as the Founders understood it, as the Constitution intends it, and as the executive, legislative, and judicial branches of government interpret it, is not about the command and direction of the armed forces of the United States. Whether the president can send American soldiers into battle does not depend on whether Congress has declared war or even given its specific authorization to the use of force. Nor does the ability of Congress to prevent or oversee the president’s use of force turn on the existence of a declaration of war. Rather, a declaration of war is about acknowledging the severity of the threat to the United States and recognizing that meeting that threat demands extraordinary measures above and beyond the foreign deployment of troops. Few conflicts rise to the level of requiring declarations of war, and the threshold is not determined by the length of the hostilities, the intensity of the fighting, or even the number of casualties. The conflicts that have been deemed deserving of declarations of war have been those that threatened to engulf the world in combat and potentially hold in danger

THE MEANING OF THE DECLARE WAR CLAUSE

21

the existence of the country. The world wars of the first half of the 20th century were such conflicts. These wars were not only global in scope, but they ushered in a new era of warfare that demanded new strategies and tools to fight. In particular, the era of total war meant that “the ability of the nation to produce and supply its fighting forces with weapons and food became more important than mere man power in uniform,” which in turn “meant that political and economic considerations inevitably dictated military decisions; no longer could war be reserved for the military. Success in total war depended as much on the farmer and the factory worker as on the warrior.”24 Accordingly, it was in these total wars that the president needed the broadest possible complement of war powers to take actions in the domestic arena that would not normally be allowed in peacetime— actions of a legislative nature, including the establishment of rationing, the seizure of domestic industry and transportation for the war effort, the power to censor the press, arresting enemy aliens, and interning American citizens—and it was the formal declarations of war passed by Congress that gave the president those powers.25 By contrast, while the war on terror does have components that look like traditional warfare, such as the ongoing conflicts in Iraq and Afghanistan, the domestic component of the war on terror is not just about support and supply; rather, the domestic arena is, to some degree, a battlefield in and of itself. Uncovering al Qaeda sleeper agents, monitoring communications from or to suspected terrorists that are moving through American phone lines, wireless towers, or involving American citizens, protecting America’s borders, detaining and trying suspected terrorists—all of these are critical elements of the war on terror that are taking place within America’s borders or in areas under American sovereign control. And since the war on terror has no conceivable end, it is not necessarily clear when any extraordinary powers given to the president would be returned as no longer needed. It therefore becomes even more important that claims to expanded powers be checked by the more deliberative and representative branch of American government. The power to declare war provides that check. As this chapter argues, the declaration of war is a vital congressional check on presidential power as it serves as the determinant of whether the president can exercise broad domestic legislative powers to fight the conflict. The war on terrorism very well may be a total war that rivals the threats posed by the world wars of the 20th century. But that is a political decision that must be made by the president and Congress together. A total war requires that legislative powers be ceded to the president in order that the conflict be fought effectively, but only the legislative body of government can decide to cede the legislative power. Just as the president asked Congress for declarations of war in both World Wars I and II, and sought

22

RESTORING THE BALANCE

congressional approval for most of the controversial actions taken, so should modern-day presidents, if they in fact determine that international terrorism poses the same magnitude of threat to the United States and its interests as did imperial or Nazi Germany. CONFLICTING DEFINITIONS OF THE DECLARE WAR CLAUSE Legal theorists and policy makers alike have generally staked out two dichotomous positions on the meaning of the Constitution’s declare war clause. On one side are those who argue for the broadest understanding of the declare war clause and a very limited conception of executive power. In this formulation, war must be formally declared each and every time American troops are to be sent into battle (with the possible exception of a sudden attack on American soil in which the enemy must be met before deliberations over declaring war can be held). On the other side are those who read a very narrow definition of the declare war clause, and claim that declarations of war are only necessary in extreme cases and are used to transform the legal status of the nation from a peacetime to a wartime footing. This side tends to argue that such a transformation does not require a formal declaration of war, but can be achieved through various kinds of congressional authorizations. Absent a formal declaration of war, however, the president is free, pursuant to his inherent authority as commander in chief of the armed forces of the United States, to deploy forces as he sees fit, unless Congress exercises one of the checks in its toolbox. A declaration of war, in the narrow definition, is only necessary to activate certain domestic laws that are not part of the president’s war powers, such as the power to seize private property or establish price controls or rationing patterns. The argument presented here hews more closely to the second argument, in that it takes a narrow reading of the declare war clause. As will be shown, the declare war clause was not intended by the Founders and has not been interpreted by the president, by Congress, or by the Supreme Court to give Congress control over the deployment of U.S. troops into combat. However, my argument deviates from the standard conception of the narrow argument by claiming that there is something particular about a formal declaration of war that makes it essential and nearly irreplaceable for transforming the legal condition of the country from a peacetime status to a wartime one and transferring extraordinary legislative powers to the president. Properly understood, the power to declare war gives Congress the ability to check expansions of executive power over domestic affairs, and by protecting that sphere, Congress remains a potent force in

THE MEANING OF THE DECLARE WAR CLAUSE

23

the protection of civil liberties and a meaningful balancer in a system designed to balance power between branches of government. But before we can fully examine this claim, we first must consider in greater detail and depth the two mainstream interpretations of the declare war clause. The Broad Interpretation The position of those who adhere to a broad interpretation of the declare war clause can be summarized in the following sentences: “Beyond the most immediate and direct responses to sudden attacks, Congress must actively assert its sole authority to declare that a state of war exists or the use of force is justified. Without exception, authorizations of force should name specific states, groups, or individuals to be subject to their terms and the time period and geographic area within which hostilities may occur.”26 According to this interpretation, Congress’s constitutional power to declare war gives Congress the authority to determine where, when, and how force should be used; the president’s power is to be confined to the command of the troops within the parameters established by Congress. This view is echoed by many analysts and scholars who embrace the broad interpretation of the declare war clause. Michael Glennon claims that there is “no evidence that the Framers intended to confer upon the President any independent authority to commit the armed forces to combat, except in order to repel sudden attacks.”27 Harold Hongju Koh notes that “Congress, not the president, [has been] granted the dominant role” in foreign affairs.28 Louis Fisher argues that even if modern-day threats dwarf in magnitude the threats extant in the days of the Founders, that simply creates “all the more reason for insisting that military decisions be thoroughly examined and approved by Congress.”29 And David Gray Adler asserts that until the Korean War, “it had long been established and well settled that the Constitution vests in Congress the sole and exclusive authority to initiate total as well as limited war.”30 All of the above arguments take their primary cues from their interpretations of the intentions of the Founders, in particular claims that the Founders intended to remove the warmaking power from the hands of a unified executive, as well as precedents from the early days of the American republic. Looking to the Constitutional Convention, supporters of the broad interpretation point, first of all, to the draft constitution created by the Committee of Detail that stated that “the legislature of the United States shall have the power . . . to make war.”31 Adler also notes that the one Framer who argued for presidential control of the warmaking power, Pierce Butler, had “no support for his opinion and no second for his motion.”32 Furthermore, the final language of the draft constitution was changed from

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RESTORING THE BALANCE

“make” war to “declare” war at the urging of James Madison and Elbridge Gerry in order, Adler argues, to leave the power to repel sudden attacks with the president.33 Adler concludes that “the debates and the vote on the war clause make it clear that Congress alone possesses the authority to initiate war. The warmaking power was specifically withheld from the president; he was given only the authority to repel sudden attacks.”34 However, Adler is drawing a lot of inferences from the interpretations of a few of the Framers. Even given the evidence of how some interpreted the declare war clause, it does not necessarily follow that that interpretation is the one shared by all the members of the Constitutional Convention, or is the meaning that the Constitution was intended to convey. All that we can authoritatively rely upon is the Constitution itself, which gives Congress the power to declare, and not to make, war. As we shall see, there are many levels of hostilities short of war that have been recognized to be well within the purview of presidential power; furthermore, it will be argued that if the Framers had wanted to prevent the president from exercising warmaking powers, they would have known how to do so clearly and decisively. The argument for a broad understanding of the declare war clause then turns to the meaning of the word declare as it would have been understood by the Founders. Saikrishna Prakash writes that at the time of the Founding, “any decision to wage war, however expressed” was a declaration of war.35 If Prakash is correct, then any use of military force would demand a declaration of war, and Congress would thus control the warmaking power and “only Congress can decide whether the United States will wage war.”36 In this argument, the president “cannot unilaterally order an airstrike on Tehran because such an attack would amount to a declaration of war.”37 In fact, “even if Iran declared war on the United States, either formally or informally, the President could not attack Iran merely because the latter had already declared war. The decision whether to go to war always rests with Congress.”38 Prakash argues that, prior to the adoption of the U.S. Constitution, declarations of war were announcements of the intention to wage war rather than an official act that affected the legal status of the belligerents.39 He then presents evidence that, before the Founding, “Americans shared the European understanding of ‘declare war’ and ‘declaration of war,’ ” and that “Americans regarded various hostile actions short of actual warfare as declarations of war.”40 The upshot of Prakash’s argument is that, in his view, “the claim should not be that Presidents have fought undeclared wars, but that Presidents have declared war when only Congress ought to have done so.”41 If every use of military force is a declaration of war, and only Congress can declare war, it follows that only Congress can authorize the armed forces of the United States to enter into armed conflict. Finally,

THE MEANING OF THE DECLARE WAR CLAUSE

25

Prakash argues that his interpretation of the declare war clause must be correct, because if the power to declare war does not encompass the power to initiate and make war, it is useless.42 Ultimately, Prakash’s argument is unsatisfying on several grounds. First, it is entirely unclear that the Founders would have understood the phrase “declare war” to encompass the initiation and making of war. In an article responding to Prakash’s argument, Robert Delahunty and John Yoo write that “[Prakash] cannot deny that important historical figures of the [constitutional framing] period both used ‘declare war’ in its narrower sense [referring to altering legal statuses] under international law and used other phrases, such as ‘make,’ ‘engage,’ or ‘levy,’ to refer to beginning military conflict.”43 Specifically, they point out that “Article I, Section 10 [of the Constitution] establishes the precise process for making war decisions that Prakash reads into the far different Declare War Clause.”44 Article I, Section 10 states that “No State shall, without the Consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit delay.”45 Thus, “if the Framers wanted to create the identical process between the President and Congress, as Prakash claims, we have proof that they knew how to write it out.”46 Supporting this claim, Delahunty and Yoo point to the 1776 Constitution of South Carolina, which stipulated that the state executive “shall have no power to make war or peace” without the authorization of the legislature, as well as to South Carolina’s 1778 Constitution, which said that the governor “shall have no power to commence war” without legislative approval.47 Clearly, the Framers of the Constitution could have made the U.S. Constitution more specific and clear if they wanted to deny the president the power to initiate armed hostilities. Prakash’s fear that separating the power to make war from the power to declare war makes the latter useless is unfounded as well. He argues that if the declare war clause is about changing legal status rather than initiating hostilities then “the power to declare war [is] rather inconsequential,” as Congress could pass any laws it chooses with or without declaring war.48 The balanced theory of war powers presented below resolves this problem by clearly separating executive and legislative powers in wartime. A declaration of war is, therefore, not about simply activating existing statutes but about giving the president broad legislative power to fight the enemy more effectively. And this is by no means an “inconsequential” distinction. As the setbacks experienced by President Bush in the war on terror make evident, the absence of a declaration of war has denied the president the ability to take unilateral, legislative actions such as warrantless wiretapping and the unchallenged indefinite detention and trial by military commission of suspected terrorists, and forced him to turn to Congress for approval of the desired policies.

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Finally, supporters of the broad interpretation of the declare war clause turn to evidence from the early days of the United States to bolster their claim that the original understanding of declare war encompassed the initiation of conflict. Louis Fisher discusses the actions of president George Washington during the military campaigns against the Indians immediately after the adoption of the Constitution, and concludes that, in the absence of congressional authorization, “the executive branch understood that its military operations against the Indians were limited to defensive actions.”49 Fisher points to a letter from secretary of war Henry Knox to governor William Blount in 1792 in which Knox writes that “whatever may be [President Washington’s] impression relatively to the proper steps to be adopted, he does not conceive himself authorization to direct offensive military operations against the Chickamaggas. If such measures are to be pursued they must result from the decisions of Congress who solely are vested with the powers of War.”50 David Gray Adler finds similar evidence in president Thomas Jefferson’s response to attacks on American maritime shipping in the Mediterranean Sea by the pasha of Tripoli. Jefferson sent a squadron of U.S. naval vessels to protect American commerce, and when one ship was attacked, the ship retaliated and disabled its attacker, but then released the crippled Tripolian raider. In a message to Congress, Jefferson explained the release by saying that “unauthorized by the Constitution, without the sanction of Congress to go beyond the line of defense, the [enemy] vessel, being disabled from committing further hostilities, was liberated with its crew.”51 Adler also cites a letter from president James Madison to Congress immediately prior to the War of 1812 in which Madison wrote that “whether the United States shall remain passive under these progressive usurpations and these accumulating wrongs . . . is a solemn question which the Constitution wisely confides to the legislative department of the Government.”52 Together, this evidence is used to bolster the claim that the declare war clause was meant, originally at least, to encompass the decision to initiate military hostilities, not just affect the legal status of the United States. As Adler writes, “a search of historical records for a claim to presidential power to initiate hostilities is made in vain. In fact, it was left to twentiethcentury officeholders and commentators to adduce constitutional power for the president to make war.”53 Delahunty and Yoo, however, challenge the evidence presented in favor of the broad interpretation of the declare war clause. In regards to Washington’s military operations against the Indians, they argue that “Congress enacted no statute declaring war or authorizing offensive hostilities against the tribes. It placed no conditions of any kind on the use of the nonmilitia, regular armed forces. The natural inference is that Congress recognized

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the President’s power as Commander in Chief to decide how to use the forces that the Legislature once created.”54 They go on: During the House debates, some in Congress objected to the bill’s language [funding the permanent Army of the United States] because they believed it gave the President the unconstitutional power to start a war. Others wanted to add language to the bill to force the administration to adopt a more aggressive strategy toward the Indians. [James] Madison argued that Congress should not specify where troops should be based and for what purposes they should be used. “By the constitution, the President has the power of employing these troops in the protection of those parts [of the country] which he thinks requires them most.”55

They continue by noting several instances in which Washington conducted offensive military operations but “did not seek authorization from Congress” and that “throughout the six-year war, in which the United States saw its Army destroyed on the ground before it could achieve victory, Washington never sought or received explicit authorization for offensive operations from Congress.”56 Turning to Jefferson’s military operations against the Barbary pirates, Delahunty and Yoo again contend that the historical evidence fails to support the broad interpretation of the declare war clause. They claim that “no one in the cabinet, including Madison or Gallatin, believed that the President had to seek congressional permission to order the mission.”57 Expanding on this argument, they write that “Jefferson and his advisors assumed they had the authority for the expedition simply by virtue of Congress’s creation of the naval forces that made it possible—a position no different from the one President Washington had taken in the Indian wars.”58 Historian Michael Oren concurs with Delahunty and Yoo about the nature of Jefferson’s response to the threat posed by the Barbary pirates. According to Oren, “uncertain whether Congress would make [a declaration of war], Jefferson determined to side-step the legislature and order a policing operation that fell just short of war. The Navy was consequently instructed to enforce the existing treaties with North Africa, but also ‘chastise’ any aggression by the pirates ‘by sinking, burning, or destroying their ships.’ By circumventing Congress and personally authorizing military action in the Middle East, Jefferson set a precedent for future American presidents.”59 And, if the evidence for the broad interpretation is shaky in the early days of the American republic, it gets even shakier in modern times when, as even its supporters concede, “a steady pattern of presidential war-making has developed.”60 While this argument will be developed in detail below, one only need point to the Korean War, the Vietnam War, the Mayaguez

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incident (in which President Ford authorized a military operation without authorization from Congress to rescue an American merchant vessel which had been seized by Cambodia), the attempted rescue of American hostages held in Iran, the invasion of Panama, and the interventions in Bosnia, Somalia, and Kosovo for clear evidence that the president does use military force without explicit permission from Congress. Furthermore, the few attempts Congress has made to assert itself in the area of warmaking have fallen flat. Not only has the War Powers Resolution been dismissed as unconstitutional by every president since its passage, but even those who seek to limit the president’s power to initiate military operations fault it for ceding too much ground to the president.61 Ultimately, the broad interpretation of the declare clause is unsatisfying, particularly as it fails to describe the outcomes of political actions accurately. There is enough counterevidence throughout early American history to challenge the notion that the power to declare war was intended to include the power to initiate military hostilities and control the deployment of American armed forces. There is also little definitive proof that the Founders meant the declare war clause to adhere to the broad interpretation. Certainly, there is nothing concrete in the Constitution itself to support such a claim. And the practice of the president and Congress, at least for the last 50 years, if not longer, does not support the broad interpretation. So, now we turn to the narrow understanding of the power to declare war. The Narrow Interpretation The primary champion of the narrow interpretation is, unquestionably, John Yoo, who has been, since September 11, the most vocal proponent of expanded executive power. In two books and numerous opinion pieces and law review articles, Yoo has forcefully argued that the United States is enmeshed in a war against international terrorism and that in times of war the president needs to be able to act, particularly concerning the initiation of military hostilities, with “speed, decisiveness, and secrecy” and without having to consult Congress.62 For Yoo, the narrow interpretation of the declare war clause can be summed up in one sentence: “[T]he main effect of declaring war would be to alter legal relationships between subjects of warring nations and to trigger certain rights, privileges, and protections under the laws of war.”63 Thus, in this conception, Congress’s power to declare war does not give the legislative body a veto over the president’s decision to send American armed forces into battle. Instead, Congress’s primary means of checking the president’s use of force are congressional control of appropriations and its ability to pass domestic legislation.64

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The implications of Yoo’s argument are quite broad. While his arguments have raised much controversy in the context of the war on terror, Yoo sees the narrow interpretation as part of a wider campaign to “reinvigorate” a presidency that has been weakened by the experiences in Vietnam and Watergate, both of which occurred in an era in which there were “no serious national security threats to United States soil.”65 However, today’s threat environment and national security imperatives demand a different approach: If, however, the nature and the level of threats are increasing, and military force unfortunately remains the most effective means for responding to those threats, then it makes little sense to commit our political system to a single method of making war [relying on a congressional declaration of war for each and every use of force]. At the very least, it seems clear that we should not adopt a warmaking process that contains a built-in presumption against using force abroad. Earlier scholarly approaches assumed that in the absence of government action peace would generally be the default state. The events of September 11 strongly suggest that this assumption is no longer realistic. The United States must have the option to use force earlier and more quickly than in the past.66

Accordingly, Yoo seeks to “understand our Constitution’s allocation of the foreign affairs power to permit a flexible decisionmaking system that can respond to such sweeping changes in the international system and in America’s national security posture.”67 Yoo’s impact goes far beyond that of a legal scholar advancing a theoretical argument. As a deputy attorney general in the Office of Legal Counsel of the United States Department of Justice, Yoo helped craft many of “the Bush administration’s legal policies in the war on terrorism,” all of which reflect his narrow reading of the declare war clause.68 The attacks of September 11, 2001, created, according to Yoo, a state of war between the United States and al Qaeda; President Bush, in his address to Congress on September 20, 2001, and Congress, in the AUMF of September 18, 2001, subsequently recognized the state of war.69 The recognition by the president and Congress of the existence of a state of war authorized the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”70 Under this argument, in time of war the president is to exercise broad authority to combat the threat faced by the country. In particular the policies addressed in this book—the power to deploy military troops, the power to conduct warrantless surveillance, and the power to detain suspected terrorists and try them under military commissions—are all to

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be understood as powers that are pursuant to the president’s charge to defend the United States and should not be subject to congressional approval, oversight, or interference. Even without passage of the AUMF of September 18, 2001, which constituted congressional authorization of the use of force, “the President’s broad constitutional power to use military force to defend the Nation . . . would allow the President to take whatever actions he deems appropriate to pre-empt or respond to terrorist threats.”71 In regard to the warrantless surveillance conducted by the NSA, Yoo writes that “to exercise [the authority and the responsibility to protect the United States against future attacks] effectively, the President must have the ability to engage in electronic surveillance that gathers intelligence on the activities of the enemy.”72 Furthermore, because “gathering intelligence has long been understood as a legitimate aspect of conducting war . . . the President’s role as commander in chief and the sole organ of the nation in its foreign relations must include the power to collect intelligence,” and that “if presidents in time of peace can order surveillance of spies and terrorists, executive authority is only the greater now in wartime.”73 In short, during time of war, the president’s inherent constitutional authority as commander in chief gives the president the power to order the surveillance of potential enemy communications, with or without congressional approval. As for the question of the president’s ability to order the indefinite detention of suspected terrorists seized on the battlefield and their subsequent trial before a military commission, Yoo writes that “control of prisoners captured in war has rested with military commanders, and ultimately with the president. This power is implicitly part of the Constitution’s grant of the commander in chief power to the executive branch.”74 Furthermore, even in the absence of congressional authorization, the president “would still have authority to establish [military commissions] under his constitutional authority as commander in chief.”75 In this formulation, the narrow reading of the declare war clause, in which Congress’s power does not include control over the initiation and conduct of military operations, gives wide latitude to the president in determining what policies are to be implemented for the prosecution of the conflict. As mentioned earlier, the balanced theory of war powers presented here hews most closely to this narrow interpretation of the declare war clause; however, it has several significant differences. While the detailed explanation of the narrow interpretation is presented in the following section as part of the larger explanation of the balanced theory of war powers, here I wish to highlight how the balanced theory differs from the arguments of Yoo and other proponents of the narrow interpretation.

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The narrow interpretation of the declare war clause as understood and presented by Yoo is consistent with both the intentions of the Founders and with the vast majority of practice and case law in American history. However, in the ongoing war on terrorism the narrow interpretation has come upon hard times with defeat after defeat in the courts and its utility seems to no longer be applicable. And while there is certainly value in maintaining the moral high ground by advancing a theoretically sound normative argument, a framework that cannot be sustained in the real world of politics and that cannot pass judicial review is all but useless. Sound policy making, especially in wartime, demands a coherent argument that can survive the political process. In every case of war powers that has come before the judicial branch as part of the war on terror—warrantless wiretapping, the indefinite and unchallenged detention of enemy combatants, the use of military tribunals to try those suspected of involvement in international terror organizations— the Bush administration has seen its policies struck down on constitutional or legal grounds. In ACLU v. National Security Agency, judge Anna Diggs Taylor found that the surveillance authorized by the president stood in contrast to the wiretapping rules established by Congress in the Foreign Intelligence Surveillance Act (FISA) and “the presidential power, therefore, was exercised at its lowest ebb and cannot be sustained.”76 Even the AUMF does not serve to give the president power to conduct warrantless wiretapping, as Congress did not explicitly mention such a power. Judge Diggs’ opinion challenges the narrow interpretation of the declare war clause, rejecting the argument that the president has broad inherent powers to implement domestic policies he deems necessary to conduct the war on terrorism.77 In a series of Supreme Court decisions, nearly every aspect of the Bush administration’s policies regarding the detention and trial of suspected terrorists has been struck down as well. In Rasul v. Bush, the Court held that the administration’s attempt to deny habeas corpus review to detainees in Guantánamo Bay Naval Base was unconstitutional. In Hamdan v. Rumsfeld, the military commissions established by President Bush to try detainees suspected of war crimes and involvement with al Qaeda or other similar international terrorist organizations were rejected since they conflicted with the express will of Congress as stated in the Uniform Code of Military Justice. And in Boumediene v. Bush, the Court found that the habeas corpus provisions established in the wake of the Rasul decision were inadequate and that the Guantánamo detainees have, under the Constitution, the right to challenge their detention in U.S. civil courts.78 Clearly, the judicial branch, and the Supreme Court in particular, does not accept the version of the narrow interpretation of the declare war clause advanced by Yoo and the Bush administration.

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Until the onset of the global war on terror, the narrow interpretation without question had the upper hand in the debate over the distribution of war powers. In World War II, President Roosevelt was permitted to relocate and intern more than 100,000 American citizens of Japanese descent, an action sustained by the Supreme Court as “an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively.”79 But in the war on terror, which the president has likened to the threats of World War II and in which the Congress has authorized the president to use “all necessary force,” the president is repeatedly denied the ability to prosecute the conflict as he sees fit. What has changed? What explains this difference? The difference arises from the nature of the war on terror, which is of a fundamentally different character from the wars of the past in which the United States has found itself, a difference which is reflected by the fact that while Congress has authorized the use of force in the war on terrorism, it has not formally declared war, as it did in both World War I and II. The domestic aspects of the war on terror challenge the balance of power between the president, Congress, and the judicial branch in a way not previously experienced. Of course, domestic security was an important element of the wars of the past. But the current war itself looks very different. First, it is not at all clear whether the war on terror represents an existential threat to the state, to the American way of life, or to democracy, as did, for example, World Wars I and II. John Mueller, a political scientist at Ohio State University, warns that Americans have developed a “false sense of insecurity” about terrorism and suggests that “because terrorism probably presents only a rather limited threat, a viable policy approach might center around creating the potential to absorb its direct effects and to mitigate its longer range consequences while continuing to support international policing efforts, particularly overseas.”80 As Mueller points out: Even with the September 11 attacks included in the count, however, the number of Americans killed by international terrorism since the late 1960s (which is when the State Department began its accounting) is about the same as the number killed over the same period by lightning, or by accidentcausing deer, or by severe allergic reactions to peanuts. In almost all years the total number of people worldwide who die at the hands of international terrorists is not much more than the number who drown in bathtubs in the United States.81

Similarly, Fareed Zakaria notes that “it is by now [July 2008] overwhelmingly clear that al Qaeda and its philosophy are not the worldwide leviathan that they were once portrayed to be” and that “this movement [is not] an ‘existential threat’ to the United States or the Western world.”82

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In its assessment of the intelligence failure that preceded the American invasion of Iraq, the Senate intelligence committee concluded that “President Bush and top administration officials repeatedly exaggerated what they knew about Iraq’s weapons and its ties to terrorist groups.”83 The question of whether the war on terror is the modern equivalent of World War II in its threat to the United States is beyond the scope of this book. But, there are most definitely arguments that the war on terror is not deserving of the “war” sobriquet, let alone of being classified as World War III. And if the threat posed by international terrorism is not really all that great, it certainly can be argued that the president does not need broad and unchecked power to fight it. Even if President Bush is correct about the nature of the threat posed to the United States by international terrorism and that it should be considered to be World War III, the war on terrorism still does not look like a conventional war. It is not a war for territory, wealth, or geopolitical power. It is not a war in which armies line up and face one another on battlefields. There are no front lines and the enemy is not a coherent organization with national assets that can be targeted. Rather than being an area for support and supply, the home front is an active battleground, albeit one in which intelligence, rather than military force, is the primary tool. There are no traditional metrics for measuring success, and it is not clear if victory can ever be achieved. What would constitute victory? Do the more than seven terror-free years in the U.S. since September 11 constitute success? Would another attack on American soil signal failure? Do the attacks in Great Britain or Spain? If the nature of the war on terror is different from that of previous, more traditional, conflicts, the mechanisms and policies that served to combat the prior wars may no longer be relevant for addressing this new type of war. As Justice Sandra Day O’Connor wrote in the majority opinion in Hamdi v. Rumsfeld, “if the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, [the understanding of the laws of war] may unravel.”84 While Hamdi was seized on the battlefield in Afghanistan and accused of fighting for the Taliban, which maintained regular fighting forces and whose conflict with the United States more closely resembles traditional war fighting, Justice O’Connor was clearly warning that many elements of the war on terror do not look traditional and thus we should be wary about assuming that the old paradigms and powers are still relevant. So, because it is possible to conceive an end to the war between NATO forces and the Taliban in Afghanistan, the laws of war may permit the United States to detain Hamdi until the end of hostilities. But can someone suspected of membership in al Qaeda be held until al Qaeda is defeated or until the war

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on terror has been won? What if that day never comes? And if the president’s role as commander in chief requires him to assume extraordinary powers to protect the state, when would those powers be given up? Presidents Lincoln, Wilson, and Roosevelt all acted during wartime in ways that would not have been permitted in peacetime and claimed powers not normally understood to belong to the president. But when their respective conflicts were over, the presidency returned to its normal state of affairs. When will the terror presidency return to its normal state? How will the power of the terror presidency be balanced and checked while the war on terrorism continues without undermining the efficacy of the effort and the security of the nation? To date, it has been the courts that have functioned as the primary check on the policies President Bush has implemented during the war on terror. In several different cases, ranging from domestic warrantless wiretapping to the rules for the detention and trial of suspected terrorists, it has been the judicial branch, rather than Congress, that has prevented the president from carrying out his desired courses of action. What is wrong with continuing this arrangement? If the courts can and will scrutinize the actions of the executive branch and strike its policies down when necessary, why should they not keep on doing so? Is it necessary for Congress to assume that role? Relying on the courts to check the president is dangerous in several different dimensions. First, it is exceedingly inefficient, from a policy perspective, for the executive branch to spend time crafting a policy which will be in place for several years, but eventually may be struck down by a legal ruling, forcing the policy makers to go back to the drawing board. Second, legal decisions tend to be all-or-nothing affairs. Either the policy withstands judicial examination or it does not. By having the check occur after the implementation of the policy, rather than during its crafting, the opportunity for the balance to be reflected in the policy is lost. Finally, the fear of potentially facing criminal charges for carrying out an illegal policy might produce an a priori chilling effect on the crafting of effective policy. If the only check on executive practice is a legal decision, policy makers will likely prefer to err on the side of caution when determining what courses of action to follow. While this may produce good policy from a legalistic standpoint, it may very well result in timid, restrained, and riskaverse policies from a results-oriented perspective.85 It is these problems that create the need for a meaningful congressional check on presidential power. The solution to this problem rests on clearly discriminating between legislative and executive power and revitalizing the formal declaration of war. When the line between acts that should be taken by the legislative branch and those that should belong

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to the executive branch becomes clear, then Congress’s ability to act as a consequential balance to presidential power becomes clear as well. While the president is free to take some actions during a time of crisis, Congress must give its approval when the president seeks to extend his reach into areas that should remain firmly under the control of Congress. Simply because the armed forces of the country are engaged in combat does not give the president the right to undermine the fundamental separation of powers on which rests the constitutional structure of the state. However, there are situations in which the threat to the nation is so great that it would be dangerous for the president to be forced to come to Congress for explicit authorization of each and every necessary policy. But there is already a mechanism by which Congress can recognize that such a situation exists and agree to temporarily transfer legislative power to the president so that he might successfully defend the country: the formal declaration of war. A formal declaration of war and only a formal declaration of war—not an Authorization for the Use of Military Force, not an appropriations bill funding military operations, not congressional silence, and not a unilateral presidential declaration—changes the status of the country from a peacetime footing to a wartime one, activates the broadest range of presidential war powers, and includes a blanket authorization for the president to take legislative actions that are normally reserved to Congress. Without a declaration of war, the president remains free to use all of his executive power in combating a threat, including, for example, the deployment of American armed forces in combat, but he cannot affect the legal status of individuals within the constitutional jurisdiction of the United States. Understanding the war powers in this way provides a theory that not only can rest on solid ground in constitutional theory but also accurately describes the outcomes of political contestation. As will be shown in the following section, the Founders not only clearly desired to separate the legislative from the executive power, but they wanted to create a president with vigorous powers to pursue foreign policy and defend the nation while maintaining the deliberative role of Congress in overseeing the laws. Thus, the theory fits with a normative argument of how war powers should be distributed between the branches. However, unlike Yoo’s argument, this theory also corresponds with political practice and case law before and during the war on terrorism. It therefore provides a positivist framework against which past actions can be judged and on which future policies can be made. The Framers of the Constitution could not possibly have imagined what war would look like in the 20th century. However, properly understood, the system of government they created is perfectly capable of adapting

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to and coping with the stresses and demands not only of modern war but of the war on terrorism as well. Government practice adapted to reflect the demands of foreign policy and war fighting in the modern era. The president used force as he deemed necessary, often without asking for permission from Congress. By and large, Congress deferred to these uses of force, while the Supreme Court, until recently, approved. This ad hoc arrangement worked fairly well for the 50 years following World War II, but is now threatened by the unique nature of the war on terrorism, as evidenced by the numerous defeats of executive policy in the courts and a newly invigorated and argumentative (albeit so far largely unsuccessful) Congress. It is all the more necessary now to develop a theory that not only squares with the constitutional distribution of power, but also takes into account political reality. A BALANCED THEORY OF WAR POWERS The Constitutional Meaning of Declare War The place to begin examining the constitutional meaning of the declare war clause is, logically, the Constitution itself and the debate surrounding its writing and ratification. The Constitution is, simultaneously, both vague and clear about how war powers are to be distributed among the political branches of government. Article II, Section 8 of the Constitution gives Congress the power to “declare war, grant letters of Marque and Reprisal, and make rules concerning captures on land and water; to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces,” and to make rules governing the organization, training, and use of the militias. Article II, Section 2 states that “the President shall be Commander in Chief of the Army and Navy of the United States, and of the militias of the several states, when called into the actual service of the United States.” It is clear that Congress controls the power of the purse of the military and can set rules for the organization and governance of the armed forces. It is also clear that the president is commander in chief which, in the words of Alexander Hamilton, gives the president the power of “the supreme command and direction of the military and naval forces.”86 What is not clear is whether the president can command the armed forces in the absence of a declaration of war. The power to declare war is left undefined. Neither the debates surrounding the drafting of the Constitution nor those concerning its ratification shed definitive light on this question. Much is made of the decision to change the language in an early draft of the Constitution from giving power to “make war” to the power to “declare

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war,” which is in the final version. Those who argue that “declare war” should be understood to encompass the initiation of military hostilities see this change as intended only to ensure that the president could repel sudden attacks without waiting for Congress to meet, deliberate, and authorize a response.87 As David Gray Adler writes “Congress was granted the power to make, that is, initiate war; the president, for obvious reasons, could act immediately to repel sudden attacks without authorization from Congress.”88 But, as discussed earlier, if the Framers wanted the power to initiate military hostilities to rest with Congress while only permitting the president to respond to sudden attacks, they certainly could have been clearer. Article I, Section 10 achieves this purpose unmistakably by stating that “No state shall, without the consent of Congress . . . engage in war, unless actually invaded or in such imminent danger as will not admit of delay” (emphasis added). If the Framers intended the war powers to be divided between the president and Congress in the same way as between the federal government and the states, they could have used the same language to limit the president’s ability to use military force by forbidding him to “engage” in war without express permission from Congress. The use of the word “declare” rather than “engage” indicates that the allocation of powers may indeed be intended to be different. Furthermore, the Federalist Papers, regarded by many as the best insight into the meaning of the Constitution, makes no mention of Congress having sole power to initiate conflict. The Federalist tells us that the president’s power as commander in chief encompasses command and direction of the armed forces, but the declare war clause is only mentioned twice: In Federalist 25 where Hamilton argues that since formal declarations of war “[have] of late fallen into disuse,” if the nation cannot raise troops until war is declared then the United States would be “incapacitated by its Constitution to prepare for defense before it was actually invaded,” and in Federalist 41, where Madison claims that the power to declare war must necessarily belong to the federal government.89 Thus, the most that can be said is that the text of the Constitution does not conclusively resolve, one way or the other, the question of how the distribution and meaning of war powers are to understood. To resolve this question, we can examine the structure of the constitutional allocations of power. In doing so, we see the importance of distinguishing between legislative and executive power, and it becomes clear that it is this distinction that helps us understand the declare war clause. Following the arguments of John Locke, the Framers separated the power of governance into its constituent components: legislative, executive, and judicial. According to Locke, “the legislative power is

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that which has a right to direct how the Force of the Commonwealth shall be employed for preserving the Community and the Members of it” and “the legislative power is put into the hands of divers [sic] persons who duly assembled have by themselves or jointly with others, a power to make laws.”90 However, “because the laws . . . have a constant and lasting force and need a perpetual execution . . . ’tis necessary there should be a power always in being which should see to the execution of the laws that are made, and remain in force. And thus, the Legislative and Executive Power come often to be separated.”91 In other words, while the legislative body is empowered to make whatever laws it deems necessary for the governing and ordering of society, and the executive branch is tasked to act in such ways as to carry out the laws properly made, the essentially complementary nature of the powers demands that they be divided between different governing bodies. That the Framers recognized this separation is made clear by James Madison, who wrote that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many . . . may be pronounced the very definition of tyranny.”92 The structure of the Constitution mirrors the logic put forth by Locke and Madison. Article I establishes that “all legislative powers herein granted shall be vested in a Congress of the United States,” while Article II states that “the executive power shall be vested in a president of the United States.” Consequently, the powers listed within each article correspond to the general division of responsibilities suggested by Locke. Congress is given the power to pass laws, raise taxes, regulate commerce, ensure patent and copyright rights, declare war, suspend the writ of habeas corpus (when necessitated by rebellion or invasion), appropriate monies for public use, and to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” The president, meanwhile, is named commander in chief of the armed forces, and is given the power to make treaties, appoint ambassadors and justices of the Supreme Court, and to “take care that the laws be faithfully executed.” While there is some crossing of boundaries inherent in the checks and balances built in (the president’s veto is inherently legislative while the Senate’s power of advice and consent over treaties and appointments is fundamentally executive), the legislative and executive powers are fairly neatly divided between Congress and the president, respectively. Determining whether the power to conduct military hostilities is best defined as executive or legislative would, therefore, clarify which branch was most likely intended to hold that power. In Federalist 70, Hamilton discusses the nature of executive power, stating that “energy in the executive is a leading character in the definition of good government,” and that “the ingredients which constitute energy

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in the executive are unity, duration, an adequate provision for support, and competent powers.”93 That energy, Hamilton writes, is “essential to the protection of the community against foreign attacks.” In Federalist 74, Hamilton addresses the executive power in reference to war, arguing that “of all the cares and concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength forms a usual and essential part in the definition of executive authority.”94 From a functional perspective, the command and deployment of troops fits better under the executive branch than it does under the legislative power. As Yoo writes, “there can be little doubt that the decision to use military force is ‘executive’ in nature. . . . It calls for action and energy in execution, rather than the deliberate formulation of rules to govern the conduct of private individuals.”95 If the power to initiate and conduct military hostilities is executive, then the case for the narrow interpretation of the declare war clause is strengthened: Congress has the power to control the legal conditions accompanying the use of force, but the president possesses the authority to use the military that Congress has given him. Historical precedent and numerous legal opinions support the view that a declaration of war is not necessary in order for the president to send American soldiers into combat. The United States has used force in well over 200 separate instances, but Congress has only formally declared war 5 times and has formally authorized the use of force in anywhere from 11 to 15 (depending on the count) other instances. That leaves “several major military operations— and about 200 minor ones—[that] have been conducted without specific and controlling legislative action.”96 The minor conflicts include the shelling of a Nicaraguan city in retaliation for an attack against a U.S. diplomat and the landing of small numbers of Marines to protect property owned by American citizens. Major operations that lacked any formal congressional authorization of force include the use of more than 120,000 troops to fight a guerrilla war in the Philippines between 1899 and 1902, the Korean War in which over 36,000 U.S. troops died, the invasion of Grenada in 1983 to restore the government that had been overthrown by communist rebels, the overthrow of Panamanian President Manuel Noriega in 1989, the 1993–1994 intervention in Somalia that began as a humanitarian effort but turned into a military operation that ended in the deaths of 18 Marines, and the NATO-backed airstrikes in 1999 against Serbia.97 Congress has, occasionally, refused to give authorization to the president to use military force. Nine presidents—George Washington, John Adams, James Madison, James Polk, William McKinley, Woodrow Wilson,

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Franklin Roosevelt, Lyndon Johnson, and George W. Bush—asked Congress to approve a particular measure and were denied. The denied measures ranged from James Madison’s call for a declaration of war against Algiers to William McKinley’s appeal to increase the size of the army during the Spanish-American War to the rejection of Woodrow Wilson’s request to arm merchantmen in the face of German U-boat attacks in World War I.98 Congress has, furthermore, occasionally placed restrictions on how force may be used, in some cases even forbidding the president funds necessary to deploy troops into the field. For example, Congress restricted funding from being used to prosecute hostilities in Laos, Thailand, and Cambodia during the Vietnam War and eventually ended that conflict by cutting off funds for all military operations. President Ford was denied the right to use force in Angola, President Reagan saw Congress bar funds from aiding the contra rebels in Nicaragua against the communist government there, and President Clinton was blocked from continuing the conflict in Somalia.99 However, these last examples were all exercises of the congressional power over appropriations; Not once in its history has Congress challenged the president’s right to deploy U.S. troops without explicit congressional authorization. The long list of historical precedents is further supported by a litany of court decisions affirming that neither a formal declaration of war nor even explicit authorization is needed for the president to send American forces into battle. Numerous opinions support the claim that there are other types of hostilities that exist below the level of “war.” In Bas v. Tingy, the Supreme Court established that there are two distinct states of war: perfect and imperfect. In an imperfect war, war is not formally declared, and yet “it is public war, because it is an external contention by force.”100 Imperfect wars are, obviously, contestations using military force, “though all the members are not authorized to commit hostilities such as in a solemn [perfect] war.” Thus, in an imperfect war, military force is used, but there are limitations on how that force can be used and what powers can be called upon to support the military effort. Contrast that with the definition of a perfect, or formally declared, war. In a perfect war: One whole nation is at war with another whole nation; and all the members of the nation declaring war are authorized to commit hostilities against all the members of the other, in every place, and under every circumstance. In such a war all the members act under a general authority, and all the rights and consequences of war attach to their condition.101

In a perfect war, the entire energy of the nation is directed towards the effort, while an imperfect war is fought in a more limited manner. Justice

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Chase’s concurrence in Bas explains the limitations that result from a war being imperfect: Congress has not declared war in general terms, but Congress has authorized hostilities on the high seas by certain persons in certain cases. There is no authority given to commit hostilities on land; to capture unarmed French vessels; nor even to capture French armed vessels lying in a French port; and the authority is not given, indiscriminately, to every citizen of America, against every citizen of France; but only to citizens appointed by commissions or exposed to immediate outrage and violence.

A perfect war requires explicit congressional declaration, while an imperfect war requires only some kind of authorization short of a formal declaration of war. Almost all uses of force by the United States military are examples of imperfect wars, limited in their scope and nature. These are conflicts in which the full range of war powers is not needed. Even conflicts as wideranging and large scale as the Korean War did not require the full attention of the United States. World Wars I and II, however, in which war was formally declared, did. In imperfect wars, the war rights and powers of the military and of the president are limited. Thus, a declaration of war, or even a formal authorization of war, is not about the ability of the president to fight, but about the legal status and rights of the belligerents. This view is supported by a Supreme Court decision from the Civil War era known as The Prize Cases, in which the majority found that previous congressional legislation, including the Acts of Congress of February 28, 1795, and March 3, 1806, served as a declaration of war for the Civil War by expressly giving the president the power to use the U.S. armed forces in cases of invasion or insurrection.102 In his dissent, Justice Nelson described the legal consequences of a declared war as including the citizens of the warring states becoming enemies, the suspension of all legal contracts, a right of interdiction of trade and commerce into the enemy nation, the ability to capture and confiscate the property of the enemy, and the right to blockade ports. Furthermore, Justice Nelson wrote that “no power short of [a congressional declaration of war] can change the legal status of the government or the relations of its citizens from that of peace to a state of war. . . . The war power of the Government must be exercised before this changed condition of the Government and people . . . can be admitted.”103 The majority opinion agreed with the consequences of declaring war, but found that other means—in this case, existing legislation—than a formal declaration could accomplish the task. A war of the formally declared, or perfect, type involves a level and intensity of hostilities that are significantly higher than in an imperfect war and thus requires the total effort, focus, and resources of the entire country.

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In imperfect wars, only the political elites and the members of the military participate in any meaningful sense. A formal declaration of war, or the creation of a state of perfect war, affects both domestic and international law, subordinating both to the war effort, and broadens the scope of presidential power to allow for a more complete, unified, and effective national effort in the prosecution of the conflict. In a formal state of war, the president has been allowed to suspend habeas corpus, seize property needed for the war effort, establish rationing patterns for food and materiel, or even intern large numbers of American citizens. According to a report by the Congressional Research Service, “a declaration of war automatically triggers many standby statutory authorities conferring special powers on the President with respect to the military, foreign trade, transportation, communications, manufacturing, alien enemies, etc.”104 When the country is not in a state of perfect war by virtue of a declaration of war, even though a state of war may exist, the president’s ability to take such domestic actions is restricted and limited. The logic of this distinction is supported by a critical Supreme Court decision during the Korean War, Youngstown Sheet & Tube Co. v. Sawyer, more commonly known as the Steel Seizure case. During the Korean War—which despite its name was not fought under a formal declaration of war or any other congressional authorization, but rather a United Nations resolution and presidential authority—President Truman attempted to seize domestic steel mills in an effort to force striking steel workers back to their jobs. Truman argued that the steel mills produced materiel that was vital to the war effort, and thus, under his inherent authority as president and commander in chief of the armed forces, he had the power to take over the mills and force them to produce steel.105 Despite Truman’s claims of inherent authority and military necessity, the seizure of the mills was struck down, as it was, according to Justice Black’s opinion, “lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President. . . . In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”106 Furthermore: The order cannot properly be sustained as an exercise of the President’s military power as Commander-in-Chief of the Armed Forces. Even though the ‘theater of war’ is an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.107

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When the president wants to take an action, pursuant to his powers as commander in chief of the armed forces, that is inherently legislative in nature, he must have explicit permission from “an Act of Congress or from the Constitution itself.”108 Since, as Justice Black notes, the Constitution refutes the idea that the president can have legislative powers, the permission must come from an Act of Congress. Without such permission, a president is not allowed to seize steel mills to ensure that the supply of waressential materiel is not threatened, conduct warrantless wiretapping of American citizens, indefinitely detain without challenge those suspected of involvement in international terrorist organizations, or change the rules governing the procedures for military commissions. In wartime, however, it may be neither expedient nor strategically sound for the president to be forced to come before Congress for permission for each and every legislative action deemed necessary for the war effort. Circumstances in war are fluid and unpredictable, and legislation passed at one time may quickly become irrelevant or obsolete. The deliberation and compromise that are the hallmarks of congressional legislation may be ill-suited to war, which demands swift and decisive action to keep on top of rapidly shifting military situations. As one scholar puts it, “Congress at war is not a pretty sight. The legislative branch can be questioning and judgmental, impatient for victories yet free with inexpert advice, slow to provide the men and materiel for combat, reluctant to vote the taxes needed to pay for the war, critical of generals, and careless with secrets.”109 It is not difficult to see that in times in which the country faces an existential, or otherwise exceedingly dangerous, threat, it may not behoove the president, the military, or the nation as a whole to require the president to ask Congress time and time again to grant him powers and to pass laws to advance the war cause. The formal declaration of war solves this problem. As will be shown in the following section, a declaration of war, and only a declaration of war, serves as a type of blanket authorization by Congress for the president to take such legislative actions (within certain limits) as he considers necessary to successfully fight the enemy. The Formal Declaration of War The key to understanding the import and necessity of the formal declaration of war lies in the scale and scope of the conflict at hand. Under the framework developed in the preceding section, the difference between war and not war in the legal sense is the degree to which the president has been given power by Congress to act in a legislative manner in the domestic arena. Only in conflicts in which such powers would be necessary to

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protect the country would a declaration of war be needed. Since the turn of the 20th century, only the two world wars have risen to such a level. This level is that of total war, a concept first developed by Prussian military strategist Carl von Clausewitz. Total war refers to war in the manner discussed earlier in which one entire state is in a state of war with an enemy, a war in which conflict is not just confined to the troops in the field, but also takes place in the industrial base and infrastructure, as well as between the political leadership of the combatants.110 Such conflicts are not limited in any sense of the word; the entire nation is at risk and therefore the entire nation contributes to the war effort. This mirrors the logic expressed in Bas v. Tingy, with the distinction between perfect and imperfect wars, the latter of which demands that the president’s power be constrained. It is inconceivable that the United States could have successfully prosecuted either World War I or II without massive contributions from the home front, and those contributions required swift, decisive, and unified executive action to be realized. On the other hand, the domestic populace of the United States, other than those in the military and their families, has made few, if any, material sacrifices in pursuit of victory in more recent military conflicts, such as in Korea, Vietnam, Kosovo, Grenada, or Iraq.111 In fact, in the last of these conflicts, President Bush has been criticized regularly for not asking for greater sacrifices from the home front.112 Accordingly, World Wars I and II were both fought under declarations of war, allowing the presidents at the time to act in the domestic arena by establishing rationing laws, seizing industry, and taking other actions as deemed necessary. Many of the expanded powers given to the president are granted via congressional statutes that come into force once war is declared: A declaration of war automatically brings into effect a number of statutes that confer special powers on the President and the Executive Branch, especially concerning measures that have domestic effect. A declaration, for instance, activates statutes that empower the President to interdict all trade with the enemy, order manufacturing plants to produce armaments and seize them if they refuse, control transportation systems in order to give the military priority use, and command communication systems to give priority to the military. A declaration triggers the Alien Enemy Act, which gives the President substantial discretionary authority over nationals of an enemy state who are in the United States. It activates special authorities to use electronic surveillance for purposes of gathering foreign intelligence information without a court order under the Foreign Intelligence Surveillance Act. It automatically extends enlistments in the armed forces until the end of the war, can make the Coast Guard part of the Navy, gives the

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President substantial discretion over the appointment and reappointment of commanders, and allows the military priority use of the natural resources on the public lands and the continental shelf. An authorization for the use of force does not automatically trigger any of these standby statutory authorizations. Some of them can come into effect if a state of war in fact comes into being after an authorization for the use of force is enacted; and the great majority of them, including many of the most sweeping ones, can be activated if the President chooses to issue a proclamation of a national emergency. But an authorization for the use of force, in itself and in contrast to a declaration of war, does not trigger any of these statutory authorities.113

Those statutory authorizations give great and sweeping discretionary powers to the president. No one piece of legislation, for example, specifically empowered President Roosevelt to order the relocation and internment of Japanese-Americans. The order to do so was issued pursuant to Roosevelt’s expanded powers and justified on the grounds of military necessity.114 While Congress is undoubtedly aware of the statutory authorizations that are activated with passage of a declaration of war, can it be said that ceding such discretionary power as well was specifically intended by Congress? The declarations of war for World Wars I and II both contain specific, particular, and unique language that provides clear indication that Congress did intend to cede broad and discretionary legislative power to the president in recognition of the unlimited scope and scale of the conflicts. The language can be found at the end of the declarations of war against Germany and Austria-Hungary in 1917 and against Germany, Japan, Italy, Bulgaria, Hungary, and Romania in 1941–1942: “the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Government of _____; and to bring the conflict to a successful termination all of the resources of the country are hereby pledged by the Congress of the United States.”115 Furthermore, the declarations all specify that a “state of war” between the United States and the enemy is “formally declared.” This language makes it clear that Congress understands the implications when it votes to formally declare war, and recognizes the implications of “war” as opposed to “not war.” A declaration of war represents congressional recognition that in times of crisis and existential threat, the president will need more tools at his disposal than when using force in a less comprehensive manner during a limited conflict.116 “All the resources of the government” and “all of the resources of the country” mean exactly that: When the United States is in a war for its survival, the president must be able to call upon the domestic arena with powers of a fundamentally legislative nature. In certain types of conflicts,

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it would be too dangerous for the president to have to ask Congress for powers or laws on a case-by-case basis; therefore, the declaration of war stands as a means by which Congress can temporarily transfer extraordinary lawmaking power to the president by giving a priori authorization to policies implemented by the president. It is important to note that even a declaration of war does not give unlimited power to the president. As Justice O’Connor noted in the Hamdi opinion, “a state of war is not a blank check for the President,” a concept that was affirmed in the Boumediene v. Bush decision of June 2008 that found that even when the president acts in accordance with congressional legislation, there are still certain constitutional guarantees that cannot be ignored.117 However, without a declaration of war, a president cannot seize a domestic industry deemed vital to the war effort, as President Truman tried to do, without authorization from Congress; with such a declaration, the president can establish rationing, divert industrial or transportation assets to the military effort, or intern more than one hundred thousand American citizens. This sense was expressed by Senator Edgar Cowan in congressional debate during the Civil War over the question of whether the authorization of Congress was needed for President Lincoln to seize a railroad to move troops. According to Senator Cowan: Congress has power to declare war; but to declare war is not to make war. Why does Congress declare war? For the reason, in the case of a rebellion, that the civil power of Congress has failed to compel obedience to the laws. When Congress provides the means for the President to carry on a war to suppress a rebellion, it thereby confesses the fact that it itself through the medium of the constitutional powers entrusted to it and which operate upon the citizen and which surround the citizen with his constitutional guarantees, has failed, and there is a resort to a different thing, an entirely different thing from the municipal power vested in Congress. And what is that, sir? The law of force. The military power is then called into action. The provision of the Constitution is that Congress shall declare war; not that Congress shall regulate the war, that Congress shall be the commander-in-chief of the Army and say when it shall fight, where it shall fight, how it shall fight, and how it shall get to the place of action; not at all. When Congress declares war, and provides an army and a navy for the President to achieve a particular thing, it confers upon him at the same time all the powers necessary to attain the desired end.118

Thus, it is clear that the congressional power to declare war stands as a powerful and meaningful check on presidential war powers, even if it does not include control over the initiation of conflict or the deployment of troops. The greatest potential threat to civil liberties and democracy

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is the potential for the chief executive, in times of national emergency, to claim powers normally forbidden to him in a manner that upsets the fragile balance of government. Understanding the relevance and import of a declaration of war prevents this from happening. While the mechanism must exist by which the president can see his powers expanded to deal with a war that threatens the survival of the nation, the decision of when to activate that mechanism cannot be up to the president alone. The theory of the meaning of the declare war clause and the formal declaration of war presented here preserves the delicate balance of power between the executive and legislative branches. It leaves untouched the president’s power to use military force abroad as he sees fit to defend the country, but preserves congressional protection over the domestic arena. The balanced theory of war powers fulfills the intentions, so far as they can be discerned, of the Framers, but also finds support in the behaviors of political actors, not just in the period prior to the attacks of September 11 but, as shall be demonstrated in the following chapter, during the war on terror as well. THE CHALLENGE OF THE AUMF So far, the balanced theory of war powers presented here seems to mirror the narrow interpretation advanced by, among others, John Yoo. But the narrow theory has met with numerous legal defeats in the war on terror, indicating that it fails to accurately describe and predict the correct distribution of war powers as understood by the judicial branch. What accounts for the difference? In the narrow interpretation, the trigger for the president’s assumption of broad emergency powers is not an authorization by Congress but rather the existence of a state of war. If Congress chooses to acknowledge the state of war and authorize the expanded presidential powers, all the better for the president. But congressional action is certainly not necessary, as the Bush administration and its supporters have made abundantly clear in their defenses of the president’s policies. As Yoo wrote in an online debate, “declarations of war do not serve a purpose in the balance of powers between the president and Congress in wartime.”119 In this argument, the attacks of September 11 against the United States created a state of war and, with or without a declaration of war or any other kind of congressional authorization, activated the full panoply of presidential war powers. In an analysis of the legality of the warrantless domestic surveillance program for the Judiciary Committee of the House of Representatives, law professor John C. Eastman of Chapman University writes that “as September 11 made very clear, the United States is a ‘theater of war,’ and the full panoply of presidential powers in time of war comes into

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play—his power as Commander in Chief, his power as the nation’s top executive, and his inherent power as the organ of U.S. sovereignty on the world stage. Thus, even if the [Authorization for the Use of Military Force] was not sufficient to sustain the President’s executive order . . . Congress could not by statute restrict powers that the President has directly from Article II of the Constitution.”120 Similarly, Attorney General Gonzales, in justifying the same program, argued that “the Constitution grants the President inherent power to protect the Nation from foreign attack.”121 In its brief before the Supreme Court in the Hamdi case, the Bush administration made the same argument, arguing that while Congress had, in fact, authorized President Bush to indefinitely detain suspected terrorists without challenge through the AUMF, the president’s inherent power would have allowed him to do so even without the AUMF.122 The same argument appears in the government’s briefs in Rasul and Hamdan. In all of these cases, while the administration pointed to the AUMF as proof that Congress had, indeed, declared war and authorized the president’s broadest war powers, the existence of a state of war would have accomplished that task without congressional action. This argument is unsatisfying on two grounds. First, it cannot be said that simply because a theater of war exists the president has access to the complete set of his war powers. Numerous Supreme Court decisions support the claim that not all actions are necessary and appropriate at all levels of armed combat. In Brown v. United States, the Court found that a declaration of war did not give the president the power to confiscate the property of an enemy alien if the property had no military value.123 Little v. Barreme, which took place during the Quasi War between the United States and France, produced a similar result. While Congress had passed legislation allowing the president to seize American ships traveling from American ports to a French port, the Court ruled that the president did not have the power to authorize the seizure of ships traveling from foreign ports to French ones, because such actions exceeded the power granted by Congress.124 Both of these cases support the claim that even during times of armed hostilities there are limits on the war powers upon which the president can call. As Brown makes clear, even a formal declaration of war does not give the president the power to do anything and everything he deems necessary to win the war. So, if the war powers available to the president depend on the type and nature of the conflict, what kind of conflict is the war on terror and who decides? It is unquestionably a new type of conflict, unlike any conflict that the United States has been involved in during its history. This alone should raise questions about claims to broad and unchecked powers. As

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Justice O’Connor noted in the opinion in Hamdi, “if the practical consequences of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, [the laws] may unravel.”125 The practical nature of the war on terror would seem to recommend restraint, deliberation, and a new approach to the allocation of war powers. The simple fact that it is impossible to conceive of an end to the war on terror recommends against allowing the existence of a state of war that may never end to transfer unchecked power to the president. Once such power devolved to the president, how would it come back to Congress? Even if Congress voted to cut off funding for the troop deployments in Iraq and Afghanistan, under the logic of the narrow interpretation there seems to be little Congress could do to balance the president’s assumption of legislative power. The unique, long term, decentralized, and domestic nature of the war on terror makes a powerful argument against allowing the president alone to determine when a state of war sufficiently threatens the country so as to warrant the assumption of legislative power. The second reason that this argument does not work is in the language of the AUMF. It could be argued that while it may be true that not every use of military force activates the full range of presidential war powers, a conflict in which Congress has expressly recognized the existence of a state of war and broadly authorized the president to take action does, and that the AUMFs passed in 2001 and 2002 do precisely that. As mentioned above, in multiple instances, the administration and its defenders have argued that, on top of the president’s inherent war powers, congressional passage of the AUMFs constitutes explicit authorization of the broadest package of war powers and places the president at the height of his war powers. But the languages of the AUMFs do not support such an argument. Where the texts of past declarations of war state that Congress has pledged “all the resources” of the government and country to the president for the war effort, the AUMFs have no such wording. Instead, the AUMF passed in the immediate aftermath of the September 11 attacks authorizes the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”126 Similarly, the AUMF that sanctioned the invasion of Iraq authorized the president to “use the Armed Forces of the United States as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security

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Council resolutions regarding Iraq.”127 Neither AUMF makes any mention of legislative power, let alone “all the resources” of the government or the country. Neither recognizes the existence of a state of war. As will be seen in the following chapters, the Bush administration has argued that the authorization by Congress of the president’s use of force is sufficient to justify such actions as warrantless wiretapping, indefinite detention of suspected terrorists without right to challenge the detention, and the use of military tribunals, as such actions are normal incidents of the commander in chief power. That is, the use of force has, under the laws of war, always included such powers; thus, when the president’s right to use force is recognized these powers are implicitly recognized as well. In the government’s brief in Hamdan, the Bush administration pointed back to the Hamdi decision, arguing that the Court in Hamdi acknowledged that the president’s full complement of war powers had indeed been activated by the AUMF. But, as Justice O’Connor’s warning in Hamdi (cited above) suggests, the war on terrorism is sufficiently distinct from past wars as to render that argument untenable. There is no evidence that Congress intended to transfer legislative power to the president with the passage of the AUMFs, or that Congress perceived the threat from international terrorism as rivaling that posed by the two world wars and therefore deserving of similar responses. Nothing in the debates, nothing in the op-eds written, and nothing in the AUMFs supports such a claim. And without clear and explicit authorization, a president may not claim extraordinary legislative powers for himself. Furthermore, it is hard to imagine Congress, even in the early days of the war on terror when it was dominated by the president’s own party, being willing to declare war. There are simply too many questions about the nature of the threat posed by international terror and about the necessary tools to combat it for Congress to willingly hand over the legislative reins to the president. Even in times of crisis, Congress still can and must play an important role. The basic foundation of American democracy rests on the separation of the executive branch from the legislative, and it should take more than presidential say-so to undo that separation, even in the face of war. Supporters of expanded and unchecked presidential war powers often point to the Supreme Court decision in United States v. Curtiss-Wright Export Corp. to bolster their claim that in times of war the president can act as he sees fit. In Curtiss-Wright, the Court found that the president possesses broad and unchallenged power to conduct the nation’s foreign affairs: “In this vast external realm [of foreign affairs], with its important, complicated, delicate, and manifold problems, the President alone has the power to speak or listen as a representative of the nation. . . . [T]he President [is] the sole organ of the federal government in the field of international

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relations—a power which does not require as a basis for its exercise an act of Congress.”128 The decision is often used as the ultimate basis for claims of enhanced presidential war powers independent of congressional action or authorization. Attorney General Gonzales cites Curtiss-Wright in his explanation for the president’s inherent authority to conduct warrantless wiretapping,129 while John Yoo argues that Curtiss-Wright means that the “foreign affairs power is exclusive” to the president.130 But reading Curtiss-Wright to give the president unchecked authority to assume domestic legislative powers pursuant to his role as commander in chief and sole organ of the nation’s foreign policy is a dangerous, tendentious, and partial reading of the opinion. While it is true that Curtiss-Wright is perhaps the strongest and boldest statement by the Court that the business of foreign affairs should rest solely with the president, Curtiss-Wright also creates a distinction between the realms of what can be construed as foreign affairs and what is essentially domestic politics. The Court, in its opinion, was careful to note that “the federal power over external affairs [is] in origin and essential character different from that over internal affairs,” effectively separating one sphere from the other.131 Ultimately, the Court ruled that because the foreign affairs powers of a state result from its status as a sovereign member of the international system rather than from its domestic form of government—in other words, every state, no matter what laws make up its domestic polity, possesses basic rights, duties, and responsibilities in the international arena—the president’s foreign affairs powers do not come from the Constitution and thus cannot be limited or infringed upon by Congress or even the Constitution. But that unfettered power of the president, by definition, does not apply within the borders of the United States, where political power is defined and bounded by the Constitution and domestic law. Thus, Curtiss-Wright in essence draws a bright line between domestic and international politics. But, in which arena does the war on terrorism exist? On one hand, it looks international: al Qaeda and other similar international terror organizations are primarily based in foreign countries, U.S. troops are, at the time of writing, engaged in military operations in Afghanistan and Iraq, and the United States has struck against terror suspects around the world, from Yemen to Pakistan. On the other hand, as previously discussed, many elements of the war on terror take place within the United States. The Department of Homeland Security, the USA PATRIOT Act, the hunt for sleeper agents in American cities—all of these aspects of the war on terror take place within the area that is bound by the Constitution and domestic law. One of the major points of contention in both the Rasul and Boumediene decisions is the degree to which the Guantánamo Bay Naval Base should be considered

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to be under the sovereign control of the United States, rather than under foreign (Cuban) control. It seems rash to try to invoke the Curtiss-Wright doctrine to argue for unlimited presidential power in a conflict that is not entirely international. The unusual and unprecedented nature of the war on terrorism makes it difficult to apply old paradigms to its conduct. And when the issues at stake touch on some of the most fundamental of civil liberties—the right to not be surveilled or locked up indefinitely without cause—it makes it all the more essential to develop a theory that can not only adhere to the demands of the Constitution, but can also explain long patterns of historical practice while remaining relevant and sustainable in the present day. The balanced theory of war powers presented herein succeeds on all of these levels. It preserves the distinction between legislative and executive power deemed so important by the Framers and fits with the long pattern of the expansion of presidential power over the command and deployment of the American armed forces. But it also accurately explains and is supported by all of the recent Supreme Court decisions striking down the policies of the Bush administration in the war on terrorism. Furthermore, it accomplishes the important goal of reinvigorating Congress as an important player in the protection of the country, at least where the domestic arena is concerned. As the following chapters will demonstrate, the balanced theory of war powers creates a distribution of responsibilities that is both functional and practical. The president retains the broad authority and freedom to use the nation’s armed forces as he sees fit, subject to some important congressional checks. Congress, however, remains in possession of the legislative power, unless the president deems the threat from international terrorism so dangerous as to merit a declaration of war. This outcome allows for the vigorous prosecution of the enemy abroad, but provides protection from abuses of unfettered executive power at home. It exploits the flexibility and dynamism of the president in the area in which those assets are most valuable, and brings the considered deliberation of Congress into play over the people it represents. By examining some of the most salient controversies of the war on terror—Congress’s ability to check the president’s power to send troops into combat, the NSA’s warrantless wiretapping program, and the administration’s efforts to detain and try those suspected of involvement in international terrorism—the following chapters will argue that all three branches of government behave in ways that comport with the balanced theory of war powers.

Chapter 3

THE DEPLOYMENT OF THE ARMED FORCES AND INITIATION OF HOSTILITIES

One of the most divisive and enduring instances of war powers is the ability to send American soldiers into combat. As discussed in the previous chapter, the Constitution is frustratingly vague on this issue, making the president the commander in chief while giving the power to declare war to Congress. This has led to several confrontations between the political branches and numerous scholarly debates; however, for a variety of reasons the Supreme Court has never concretely answered the question of whether the president needs congressional authorization to deploy the armed forces of the United States. As a result, the legislative and executive branches have struggled for years over the question of who possesses the right to commit American soldiers to battle. Most recently, Congress has, to varying degrees, attempted to oppose the right of the president to send U.S. troops into humanitarian crises in Haiti and the Balkans, and into offensive operations in Kosovo and Iraq. The question has become increasingly salient during the war on terrorism, given its potentially endless nature and undefined battlespaces. Since the attacks of September 11, U.S. troops have been deployed to Afghanistan and Iraq, both of which are conflicts that have no foreseeable end and have claimed, as of the time of this writing, the lives of more than 4,500 American soldiers. While the operations in Afghanistan have, in the wake of the invasion of Iraq, remained mostly out of the public eye and have been, generally, more popular than the Iraq mission, critics have claimed that the invasion of Iraq was illegal, and at least one soldier has faced criminal charges for refusing to comply with deployment orders. Supporters of President Bush

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decry a Congress that wants to bring the troops home but is perceived to be unwilling to take responsibility for ending the war by cutting off funding, preferring instead to micro-manage the war by creating regulations that would make it impossible for the president to continue combat operations in Iraq without going on record as having opposed the use of force.1 This dispute manifests itself in ways beyond punditry and op-ed pieces. Several times during the Iraq war, Congress, unhappy with the progress of Iraqi reconstruction, mounting U.S. casualties, and the failure to find any weapons of mass destruction, has tried to limit, restrict, and even put an end to the president’s use of troops there. As of the writing of this book, every effort by Congress to limit or end the U.S. presence in Iraq has failed. But the questions raised by those efforts are not likely to disappear. Does the president or Congress control the deployment of the armed forces and the initiation of hostilities? If Congress possesses some, or even all, of that power, how should it use that power? Can the president commit troops to battle in the absence of congressional authorization, or even in the face of explicit congressional denials of authority? It is these questions that this chapter will answer. As chapter 2 made clear, the congressional power to declare war was not understood by the Founders, nor has been interpreted by either the executive, legislative, or judicial branch, to encompass the deployment of soldiers and the initiation of hostilities. Rather, a declaration of war is about the legal status that accompanies the existence of a state of war and the commensurate powers given to the president to fight that war. Both the balanced theory and the narrow interpretation of the declare war clause make this argument, and practice and legal precedent support that position. But, what if this argument is fundamentally flawed? The Supreme Court has never clearly and decisively answered the question of whether the president needs congressional authorization to deploy force. So, what if the Constitution does, in fact, require that Congress must give its assent to each and every deployment of force? As the following section will demonstrate, even if the president must have congressional authorization to send U.S. soldiers into battle, that authorization need not take the form of an explicit statement like a declaration of war or even an AUMF. Rather, both historical and legal precedent make it clear that there are multiple ways for Congress to implicitly authorize the president to use force abroad. ALTERNATIVE MECHANISMS FOR AUTHORIZING THE USE OF FORCE Obviously, Congress can, and often does, give its express authorization to the president for the deployment of troops and the initiation and conduct

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of hostilities. Five times in American history, that authorization has come in the form of an explicit declaration of war. But, given the hundreds of uses of force that have occurred in the absence of a formal declaration of war, either Congress has alternate mechanisms for authorizing the president to use force or nearly every American president has violated the Constitution by using force without proper congressional approval. Congress has frequently explicitly authorized the use of military force without issuing a formal declaration of war. In 1797, president John Adams considered asking Congress for a formal declaration of war against France in response to French seizures of American shipping and to the XYZ Affair, but ultimately chose not to ask for such a strong statement. Rather, Congress passed into law a bill declaring that “the President is authorized to instruct [American] commanders . . . to subdue, seize, and take any armed French vessel, which shall be found on the high seas.”2 Given the limited scope of the conflict, it is not surprising that Congress would not grant the president expanded powers or declare a formal state of war as existing between the United States and France. Consequently, the hostilities between the parties were limited in nature as was the freedom of the president to act which, as we saw in chapter 2, was evidenced by the Supreme Court’s striking down of presidential actions in Little v. Barreme. Congress has, in several other conflicts, given its express authorization to uses of force by the president through mechanisms other than declarations of war. President Thomas Jefferson’s campaign against the Barbary pirates in the Mediterranean Sea was fought under an “Act for the Protection of Commerce and Seamen of the United States, Against the Tripolitan Cruisers,” which announced that the pasha of Tripoli had “commenced a predatory warfare against the United States” and that “it shall be lawful for the President” to permit U.S. naval officers “to subdue, seize, and make prize” of the ships of the pasha.3 Ten years later, the United States, having signed a treaty with Tripoli, found itself in conflict with Algeria. President James Madison asked Congress for a declaration of war; Congress responded by passing legislation identical to that enacted against Tripoli.4 In each of these conflicts, a formal declaration of war was considered and rejected in favor of a less expansive authorization for the use of force. Other examples of explicit authorizations below the level of a declaration of war include the congressional authorization for the U.S. participation in the United Nations-sponsored multinational peacekeeping force that deployed to Lebanon in 1983, and the two authorizations passed in the war on terrorism.5 Congress has also given its implicit assent to the use of force with bills that, while not specifically authorizing the president to use force, make clear the intent to allow the president to use force. In 1914, in response

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to German attempts to provide arms to rebel forces in Mexico, Congress authorized president Woodrow Wilson to “[employ] the armed forces of the United States to enforce his demand for unequivocal amends for affronts and indignities against the United States.” Wilson used that authorization as the justification to deploy U.S. troops to Veracruz, Mexico, where nineteen Americans lost their lives.6 The Vietnam War was fought under similar legislative authority. The Gulf of Tonkin Resolution, passed in August 1964, read: Congress approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression. The United States regards as vital to its national interest and to world peace the maintenance of international peace and security in southeast Asia. Consonant with the Constitution of the United States and the Charter of the United Nations and in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United States is, therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.7

But the vast majority of uses of force in American history have been conducted without any kind of explicit congressional authorization whatsoever. More than 175 uses of force have occurred without any controlling legislation and while most of those instances were minor, some, such as the Korean War or the NATO airstrikes against Serbia, were large-scale conflicts, either in terms of duration or of intensity. In some of these conflicts, such as the interventions in Somalia and Haiti during the 1990s, Congress expressed its opposition to the use of force, but failed to pass legislation in support or in opposition.8 During the hostilities surrounding the dissolution of Yugoslavia, Congress passed legislation that specified it could not be interpreted as authorization for president William Clinton to deploy force in Bosnia; the bill was vetoed and President Clinton ordered airstrikes against Serbian positions.9 The 1999 NATO airstrikes against Serbia to protect ethnic Albanians living in Kosovo—an operation referred to by one critic as “clearly unconstitutional”—were conducted without any authorization and in the presence of conflicting legislation.10 In one bill, the House of Representatives voted to prohibit the use of funds for the deployment of American armed forces without prior, specific authorization, while another bill to order the removal of all U.S. troops from the former Yugoslavia failed. A third bill to declare war was almost unanimously rejected, while a fourth that sought to authorize the use of force was defeated in a tie vote, 213–213.11

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With the possible exception of the war on terrorism, none of the conflicts that has been fought without a declaration of war threatened the United States as did the world wars of the first half of the 20th century. While some of them may have been deemed critical for American national security and national interest—such as the Korean War, the Vietnam War, or the simultaneous wars in Afghanistan and Iraq in the war on terror—all were capable of being fought without “all the resources of the country” being ceded to the president. In none of them, therefore, would it have been necessary or appropriate for Congress to declare war and transfer expanded powers to the president. Thus, it makes no sense for the formal declaration of war to be the only mechanism by which Congress could authorize the use of military force. But, what about those instances in which there was apparently no controlling legislation or authorization of any kind? Were those incidents unconstitutional? In the absence of explicit, or even implicit, authorization, it is still possible to determine congressional authorization for presidential uses of force. A combination of congressional action and inaction, judicial decisions, and executive practice have melded together over the years to create an alternative to specific authorizations of the use of force. The 1973 case of Mitchell v. Laird firmly established that authorizations for the use of force may take forms other than the formal declaration of war. The U.S. Court of Appeals for the District of Columbia unanimously ruled that “it is constitutionally permissible for Congress to use another means than a formal declaration of war to give its approval to a war such as involved in the protracted and substantial hostilities in Indo-China.”12 The “protracted and substantial hostilities” referred to in the decision was, of course, the Vietnam War. If a conflict as long, as intense, and with as many casualties as the Vietnam War can be authorized by something other than a declaration of war, then clearly the power to declare war is not about the deployment of troops and the initiation and conduct of hostilities. The court continued, deciding that: Any attempt to require a declaration of war as the only permissible form of assent might involve unforeseeable domestic and international consequences, without any obvious compensating advantages other than that a formal declaration of war does have special solemnity and does present to the legislature an unambiguous choice. While those advantages are not negligible, we deem it a political question, or, to phrase it more accurately, a discretionary matter for Congress to decide in which form, if any, it will give its consent to the continuation of a war already begun by a President. That is, we regard the Constitution as contemplating various forms of congressional assent, and we do not find an authority in the courts to require Congress to employ one rather than another form.13

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Clearly, the ruling establishes that the power to declare war does not, in and of itself, give Congress the sole power to determine when and where American troops should be deployed. In an earlier decision, the District Court for the Eastern District of Pennsylvania refused to rule on whether the Vietnam War was a war in the legal sense of the word. In Atlee v. Laird, the plaintiffs argued that since the Constitution gives the power to declare war to Congress, and that because the Vietnam War was clearly a war that had not been declared by Congress, the court should rule that the use of force in Vietnam be struck down as unconstitutional. The court refused to rule on the question, stating that “denominating our military activities a ‘war’ could lead to consequences in our foreign relations completely beyond the ken and authority of this Court to evaluate.”14 The decision of whether a conflict is or is not a war in the legal sense involves, according to the court, making political determinations about formal obligations, such as treaty commitments, legal relations between the allies and enemies of the United States, and the legal status of agreements between individuals and is therefore subject to the judgments of the political branches. The question of whether those legal statuses should be changed is not one to be answered by the judicial branch.15 Atlee firmly determines that not all conflicts are necessarily “wars” in the legal or constitutional sense and that the designation of “war” is not about the existence of hostilities but rather about the conflict’s attendant legal responsibilities. Both Mitchell and Atlee make it clear that a formal declaration of war is not necessary in order for the armed forces of the United States to be sent into combat. In what ways, then, might Congress give its approval for a presidential deployment of military force? Article I, Section 8 of the Constitution gives Congress the power to raise and support the armed forces of the United States through appropriations for no longer than two years. This power of the purse is one mechanism by which Congress can, without explicitly authorizing a particular use of force, give its approval to the conduct of hostilities. The appropriations process is well recognized as a tool by which Congress can control the use of military force by the president. Holtzman v. Schlesinger established the principle that congressional appropriations of funding for ongoing military operations can constitute a form of authorization. The court found that: Congress in appropriation bills from 1965 to 1969 had shown “its continued support of the Vietnam action” and that Congress’ choice of appropriations bills rather than a formal declaration of war to effectuate its intent involved a political question which did not prevent the finding that the fighting in Vietnam was authorized by Congress and that such a finding was not a

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usurpation of power by either of the presidents who had been in office after 1964.16

If Congress chooses to fund an ongoing military operation, that funding can and should be understood to constitute an approval and authorization of the operation. On the other hand, if Congress is opposed to a particular use of force by the president, it has the constitutional power to cut off or bar funding from being used in that conflict. Such tactics have been used by Congress several times to end or restrict conflicts of which it did not approve. In an effort to preserve American neutrality prior to the attack on Pearl Harbor, Congress in the 1930s and early 1940s put several restrictions on President Roosevelt’s ability to deploy force, including barring arms sales to either warring party (a restriction that was bent almost beyond recognition by Roosevelt’s Lend-Lease policy) and a prohibition against American draftees serving outside of the western hemisphere.17 The use by Congress of appropriations to check the president’s ability to use force has been more frequent since 1970. During the Vietnam War, for example, Congress used the power of the purse four times: in 1970, when it prohibited the use of funds to finance American ground troops or military advisors in Cambodia; twice in June 1973, when Congress, in two separate appropriations bills, cut off funds “to support directly or indirectly combat operations in or over Cambodia, Laos, North Vietnam, and South Vietnam by United States forces”; and in 1974, when a personnel ceiling of 4,000 Americans in Vietnam six months after enactment and 3,000 within one year was passed.18 In 1976, the appropriations bill for the Defense Department barred the use of any funds “for any activities in Angola,” and Congress subsequently passed a permanent ban on the use of any funds “to conduct military or paramilitary operations in Angola.” In 1984, in the midst of furious debate over President Reagan’s policies in Latin America, the appropriations bill passed stated that “no funds available to the Central Intelligence Agency, the Department of Defense, or any other agency or entity of the United States involved [in] intelligence activities may be obligated or expended for the purpose or which would have the effect of supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement, or individual.”19 And, during the 1990s, Congress tried several times to use its appropriations power to limit President Clinton’s ability to deploy American troops. In 1993, Congress cut off funding for U.S. troops in Somalia, while in 1994, it forbade the use of funds appropriated to the Defense Department for intervention in the Rwandan genocide.20 It is evident that Congress not only knows how to

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use its appropriations power as a check on the president, but also has demonstrated the willingness to use that power. Furthermore, Congress possesses broad discretionary control over the funds it appropriates. In Spaulding v. Douglass Aircraft, the court stated that: Congress in making appropriations has the power and authority not only to designate the purpose of the appropriation, but also the terms and conditions under which the executive department . . . may expend such appropriations. The purpose of appropriations, the terms and conditions under which said appropriations were made is a matter solely in the hands of Congress and it is the plain and explicit duty of the executive branch to comply with the same.21

Because the power of the purse is so clearly and explicitly given to Congress, it serves as a broad and effective means by which the legislative branch can check the executive branch by limiting or even forbidding funds to be used in specific ways for specific purposes. As Jon Pevehouse and William Howell argue in their work examining congressional checks on presidential war powers, the appropriations power is a potent tool in the hands of Congress.22 Given that Congress has at its disposal the power of the purse as a mechanism for checking the president’s power to deploy the armed forces, is aware of that power, and has used that power in the past, some analysts have made the argument that unless Congress places a restriction on funds appropriated to the military, the president is free to use the armed forces as he sees fit. John Yoo writes that “although the Declare War and Appropriations Clauses assign Congress an important role in determining the breadth and intensity of hostilities with another nation, the Framers did not intend Congress to exercise a similar power in beginning or ending conflicts,” and that “if Congress [wishes] to challenge presidential warmaking, it [has] to turn to ‘the more disagreeable mode of negativing the supplies for the war.’ ”23 Robert Turner goes even farther than does Yoo, arguing that the congressional power over appropriations cannot extend into the command of the troops, as that power was given to the president in the role of commander in chief. Turner writes that “only Congress could create an army, but once one was established, it was within the president’s constitutional discretion to determine how it was to be deployed, with the sole exception that he could not declare war.” Turner goes on to argue that “in foreign affairs, with respect to the powers vested directly and exclusively in the president by the American people through the Constitution, Congress may not seize control of those powers by placing conditions on appropriations.”24 While Congress can refuse to fund the military (there

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is no constitutional requirement that the United States have a standing peacetime army), and while it can refuse to allow funds to be spent on particular missions, Congress cannot use its appropriations to interfere with the president’s command of the troops in a theater not designated as off-limits. In an op-ed piece in the Washington Post, David Rivkin and Lee Casey elaborated on this point, writing that “the power to cut off funding does not imply the authority to effect lesser restrictions, such as establishing benchmarks or other conditions on the president’s direction of the war.”25 Taken in total, these arguments add up to the position that unless Congress chooses to prohibit the military from being used in a particular way, the choice by Congress to fund a standing peacetime army is, in essence, a tacit authorization for the president to use that army as he sees fit. However, the court in Holtzman did note that “appropriation bills do not necessarily indicate an open-ended approval of all military operations which may be conducted.”26 Thus it may not be the case that, in and of themselves, restrictions on appropriations, or their absence, are enough to constitute congressional approval of a particular deployment of force. Without question, continued appropriations for an ongoing conflict can and should be interpreted as authorization, but should the existence of a standing army be a sign of congressional acquiescence to the president? Looking at the broad precedents of history, the answer seems to be yes. Since the passage of the War Powers Resolution (WPR), Congress has not attempted to force a president to comply with its obligations, despite at least one opportunity to do so.27 Every president since the passage of the WPR has stated that he does not believe it to be constitutional and that he does not consider himself to be bound by it. Not only has Congress failed to restrain uses of force by the president, but the legislative branch has often failed to take any action whatsoever, for or against, the executive branch. As Charles Stevenson notes: The very fact that Congress in recent years has often failed to complete any legislative action—in support, criticism, or direction of major military operations—undercuts its power and authority over future conflicts. Despite debate, votes, and even passage of significant legislation in at least one chamber, Congress failed to send legislation to the president authorizing or guiding military operations in the Philippines or Korea, Panama in 1989, or Haiti, Somalia, Bosnia, or Kosovo in the 1990s.28

Given the overt history of presidential uses of force without explicit, or even implicit, congressional authorization, a longstanding and largely unbroken pattern of congressional deference is discernable.

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But does the existence of such a pattern alter the constitutional duties of Congress to approve of the use of force by the president or the mechanisms by which Congress may do so? Answering yes requires a closer look at the Steel Seizure case that stemmed from the Korean War. In his concurrence, Justice Felix Frankfurter wrote that longstanding patterns of behaviors can contribute to new interpretations of the Constitution. Justice Frankfurter argued that: Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercises of power part of the structure of our government, may be treated as a gloss on “executive Power” vested in the President.29

Frankfurter’s conception of a gloss on the Constitution is bolstered by Justice Robert Jackson’s concurrence in the same case, which is normally cited as a blow to executive power and a reaffirmation of the role of Congress in checking the president. Jackson’s categorization of government power seems to privilege Congress, as the president’s ability to act is defined by the presence or absence of prior congressional action. However, Jackson’s “zone of twilight” in which “[the president] and Congress may have concurrent authority, or in which its distribution is uncertain” seems to be relevant here.30 The Constitution is certainly unclear about how the power to deploy the armed forces and initiate hostilities is to be distributed: Does it lie with the president as commander in chief, or is it encompassed by the declare war clause and thus belong to Congress? When authority is unclear “congressional inertia, indifference, or quiescence may sometimes, at least as a practical manner, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”31 In other words, when the situation demands swift action, the president can act; if Congress does not move to block that action, the ambiguity of the power in question can be resolved in favor of the president. Congressional silence in the face of the long-standing and well-known pattern of presidential war powers can come to serve as a tacit acceptance and approval of the exercise of that power, or even as a delegation of authority.32 Congress is well aware that the president is likely to deploy the armed forces during his tenure, and

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that he very well might not seek explicit authorization from Congress. By not putting conditions, restrictions, or otherwise trying to check the president, Congress has acquiesced in the creation of a gloss on the Constitution’s distribution of the power to deploy troops and initiate hostilities. The Constitution stipulates that the president is to be commander in chief of the armed forces of the United States when they are called into “actual service” of the United States. The Framers may not have envisaged either a peacetime standing army or the existence of wars without foreseeable ends, but the Constitution has often been interpreted under the color of modern events, technologies, or sensibilities. Through its continued appropriation of funds to maintain a standing army in the absence of active hostilities, and particularly in light of the well-established presidential practice of using the armed forces without congressional authorization, Congress has clearly called the armed forces into the service of the United States, thus giving the commander in chief the power to command them as he sees fit. It is interesting to note that even under the broad interpretation of the declare war clause described in chapter 2 it can be argued that congressional appropriations for a peacetime standing army could function as a formal declaration of war, thus satisfying the broad interpretation’s demand for a greater role for Congress. As Yoo and Delahunty argue in their response to Prakash’s paper on the meaning of the declare war clause: If the appropriation [for the military] is a lump sum for general military purposes, it could be seen as a conditional declaration of war against all potential foes, thereby effectively giving the president the discretion to deploy the forces placed at his disposal as he judged best. On Prakash’s own premises, then, an Act of Congress that placed funds in the president’s hands for military purposes should often, and perhaps always, function as a “declaration of war,” whether conditional or unconditional, and should thus in itself authorize the president to use the forces in question either for the specific purpose Congress designated or at his discretion. In other words, simply funding a military will be a way—perhaps, in practice, the general way—in which Congress will authorize the president to wage war.33

In light of congressional awareness of how the president uses the armed forces as well as the logic of Justices Frankfurter and Jackson, this claim fits well with the practice of both the legislative and executive branches. However, it is this gloss on executive power that has created the imbalance in war powers between the president and Congress and has directly contributed to the controversial, and overturned, executive actions in the war on terrorism. By ceding power to the executive branch, Congress has encouraged the president to act unilaterally in times of crisis. And

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by focusing attention in the war powers debate on the control of troop deployments—a debate which is almost always likely to be won by the president—Congress has distracted itself from its areas of strength and has failed to take actions to assert its authority over the domestic and legislative arenas. Foreign affairs is an area in which the president is uniquely positioned to take decisive actions and to win disputes over them. Harold Hongju Koh argues the president “almost always seems to win in foreign affairs” because Congress is crippled by several structural characteristics that make the legislative branch likely to “persistently acquiesce in executive efforts” to deploy force without congressional authorization.34 In particular, Koh claims that the congressional committee system empowers more senior members who “may be less ready to challenge the president than junior members.” Koh also claims that the procedural tools by which Congress attempts to restrain the president “simply have not worked,” often because any congressional action must take the form of legislation, which can be vetoed by the president, forcing Congress to muster a two-thirds vote, rather than a simple majority, to hold back the president. This is all the more unlikely as congressmen are often “unwilling to take responsibility for setting foreign policy, preferring to leave the decision—and the blame—with the president.” Citing Senator William Fulbright, Koh notes that while a majority of Congress may have opposed the Vietnam War, that same majority was unwilling to take responsibility for ending that war.35 The problems manifest in congressional efforts to check presidential uses of force are exemplified in the recommendations of the National War Powers Commission, whose report on how to “identify a practical solution to help future Executive and Legislative Branch leaders deal with the issue” of war powers was released on July 8, 2008. The Commission, chaired by former secretaries of state James A. Baker and Warren Christopher and tasked by the Miller Center of Public Affairs at the University of Virginia, ultimately recommended that the War Powers Resolution of 1973 be repealed and replaced with new legislation embracing its policy suggestions.36 The Commission’s proposed legislation would stipulate that consultation between Congress and the president should occur “before Congress declares or authorizes war or the country engages in combat operations lasting, or expected to last, more than one week.” If time is an issue, the consultation may occur within three days following the outbreak of hostilities. Once Congress has been consulted, it must, within thirty days, vote on a concurrent resolution authorizing the war. If the resolution passes, the president is duly and expressly authorized to conduct the military operation in question; if the resolution is defeated, any member of Congress

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then has the right to introduce a joint resolution which would expressly disapprove of the military operation.37 If the resolution of disapproval is passed: Congress has several options. If both Houses of Congress ratify the joint resolution of disapproval and the President signs it or Congress overrides his veto, the joint resolution of disapproval will have the force of law. If Congress cannot muster the votes to overcome a veto, it may take lesser measures. Relying on its inherent rule making powers, Congress may make internal rules providing, for example, that any bill appropriating new funds for all or part of the armed conflict would be out of order.38

However, while the Commission’s proposal may be well-intentioned and certainly would be an improvement over the War Powers Resolution, it seems unlikely to transform the landscape of war powers debates. First, requiring a vote to approve an initiation of hostilities within the first thirty days of a conflict may result in Congress feeling pressured to support the president. The use of military force by the president is often accompanied by the “rally-round-the-flag” effect, in which public opinion surges to support the president in times of crisis.39 While the effect often fades, particularly as a conflict drags on and casualties and costs mount, the first month of a conflict is likely to be particularly affected by a patriotic public supporting its leaders against the nation’s enemies. Calling a vote within that period would force Congress, if it wished to disapprove of the military operation, to confront adverse public opinion. Since Congress is, as noted by Koh, often unwilling to assume responsibility for the conduct of foreign affairs, it seems exceedingly unlikely that the most representative branch of government would choose to do so in opposition to a public rallying around the flag. Second, the mechanism set out by the Commission does not really solve any of the basic problems that have made it difficult for Congress to balance the president’s power over war. Ultimately, Congress would still have to muster a two-thirds majority in both Houses to override a presidential veto and pass the resolution of disapproval. As Koh notes, even in the face of the increasingly unpopular war in Iraq, Congress has not been able to come even close to mobilizing two-thirds of its members to vote against the president.40 This barrier makes it all but impossible for Congress to pass the resolution of disapproval. In such an instance, the Commission recommends that Congress use its rule-making powers. However, that option would rely heavily on the power of the committees, which may be institutionally predisposed to prevent such actions from being taken. As Koh writes, “several years of internal committee battles may ensue before the committee chair is willing to support, much less lend his or her name

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to, legislation that restricts presidential prerogative.”41 Ultimately, the recommendations from the Commission do not seem likely to empower Congress to be a credible check on presidential warmaking. As this example illustrates, fixating on the control of troop deployments as the pivotal issue of war powers debates essentially cedes the debate to the president by focusing the argument on a question most likely to be won by the president. This process not only has created competition and mistrust between the president and Congress as they argue over the power to deploy force but has produced a lack of consultation in other areas in which Congress both enjoys institutional advantages and possesses more power. By shifting the focus of the declare war clause from troop deployment to domestic legal issues, the balanced theory of war powers presented here can divert the squabbling over troop deployments into constructive cooperation and consultation over issues that Congress should be more concerned with anyway, such as the protection of domestic civil liberties. Such a shift would restore a meaningful and vital role over war powers to Congress by encouraging it to be more proactive in areas in which unchecked presidential actions have been most problematic and in which it is particularly well-suited to participate. Furthermore, by fighting a battle that most likely it cannot win, Congress unintentionally encourages the president to attempt to expand his reach. Once the executive branch has won the fight over the control of the troops, it should be of little wonder that it tries to extend its power into other areas as well. The following chapters will deal with the other “problematic areas”—domestic wiretapping and the detention and trial of suspected terrorists—into which the executive branch has recently extended its reach; the remainder of this chapter will consider how the balanced theory of war powers impacts congressional efforts to control matters in the war on terrorism and, in particular, in Iraq. CONGRESSIONAL EFFORTS TO CHECK PRESIDENT BUSH IN IRAQ: THE DEPLOYMENT OF THE ARMED FORCES The decision by the George W. Bush administration to invade Iraq was controversial at the time that the United States Congress voted to authorize it. The vote on the AUMF of October 2002 in the House of Representatives was 296–133, with 61 percent of Democrats voting against, while in the Senate the vote was 77–23, with 42 percent of Democratic senators opposing the resolution. Public opinion polls conducted prior to the invasion were even more conflicted. A CBS/New York Times poll conducted in January 2003 found that while a large majority of Americans supported

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the use of force to remove Saddam Hussein from power, a similar majority wanted President Bush to do more to find a diplomatic solution before resorting to war.42 However, as it became increasingly clear that no weapons of mass destruction would be discovered and as U.S. casualties began to rise, both public and congressional opinion turned against the continuance of the war. A CBS News/New York Times poll taken in July 2008 found that 59 percent of Americans believed that the United States should not have invaded Iraq, while an ABC News/Washington Post survey conducted at the same time revealed that 63 percent of Americans thought that the invasion was not worth the cost.43 Similarly, at about the time public opinion began to turn against the U.S. operation in Iraq, control of the Congress shifted from Republican to Democrat after the 2006 elections. Once the Democrats enjoyed majorities in the House of Representatives and the Senate, both Houses of Congress began trying to force President Bush to end the war in Iraq and to bring the troops home. Quickly after assuming control in Congress, in February 2007 the House passed a resolution expressing dissatisfaction with President Bush’s plan to increase the American troop presence in Iraq by 21,500 (the so-called surge of 2007). While the resolution was nonbinding, leading Democrats hoped the vote would serve as a precursor to a successful effort to pass legislation that would “force a redeployment” of U.S. troops out of Iraq.44 Subsequently, the Senate considered a similar nonbinding resolution, but Democrats were unable to muster the 60 votes necessary to invoke cloture and bring the resolution to the floor for a vote. However, given the Democrats’ control of the Senate and the handful of Republicans who indicated support for the measure, if there had been a vote, the resolution most likely would have passed.45 The following month, Senate Democrats introduced Senate Joint Resolution 9 (S.J. 9) entitled “United States Policy in Iraq Resolution of 2007.” According to the summary of the bill produced by the Congressional Research Service, the resolution: Directs the President to begin the phased redeployment of U.S. forces from Iraq within 120 days of enactment of this joint resolution with the goal of redeploying by March 31, 2008, all U.S. combat forces from Iraq, except for a limited number essential for protecting U.S. and coalition personnel and infrastructure, training and equipping Iraqi forces, and conducting targeted counter-terrorism operations. Requires the President to transition the U.S. forces’ mission in Iraq promptly to such purposes. States that such redeployment shall be implemented as part of a diplomatic, political, and economic strategy that includes sustained engagement

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RESTORING THE BALANCE with Iraq’s neighbors and the international community in order to bring stability to Iraq. Directs the President, not later than 60 days after enactment of this Act and every 90 days thereafter, to report to Congress on the progress made in such mission transition and force redeployment.46

According to Senate Majority Leader Harry Reid, one of the sponsors of the bill, “the President’s strategy in Iraq is not working, and Congress must decide whether to follow his failed policies or whether to change course. Democrats believe, as does an overwhelming majority of the American people, that the time has come to transition the mission of U.S. forces in Iraq.”47 The Senate voted on the resolution on March 15, 2007, defeating it by a vote of 48–50. Following the defeat of S.J. 9, both the House and Senate began considering legislation to appropriate money for the ongoing conflicts in Iraq and Afghanistan. House Resolution 1591, or the U.S. Troop Readiness, Veterans’ Health, and Iraq Accountability Act of 2007, was introduced on March 20, 2007.48 The bill passed both the House and the Senate, but with slightly different provisions that dictated the withdrawal of U.S. troops. In conference, a compromise was reached that: Outlines specified determinations, relating to actions of the government of Iraq, that must be made by the President to Congress on or before July 1, 2007. Requires that, if the President fails to make any of the determinations, the Secretary of Defense shall commence the redeployment of U.S. Armed Forces from Iraq no later than such date, with a goal of completing such redeployment within 180 days. Requires that, if the President makes all such determinations, the Secretary shall commence such redeployment no later than October 1, 2007, with a goal of completing that redeployment within 180 days. Makes funds immediately available to plan and execute a safe and orderly redeployment. Prohibits the Secretary, after the appropriate redeployment period, from deploying or maintaining members of the Armed Forces in Iraq for any purpose other than: (1) protecting American diplomatic facilities, American citizens, and other U.S. forces; (2) serving in roles consistent with customary diplomatic positions; (3) engaging in targeted special actions limited in duration and scope to killing or capturing members of al-Qaeda and other terrorist organizations; and (4) training and equipping members of the Iraqi Security Forces.49

President Bush vetoed the bill on May 1, 2007, and the attempt to override the veto failed in the House. Subsequently, Congress passed a bill to fund the conflicts in Iraq and Afghanistan without the withdrawal language. That bill was signed by President Bush on May 25, 2007.

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On May 16, 2007, a water infrastructure bill was introduced into the Senate that contained an amendment sponsored by Senator Russ Feingold (D-WI) that required the president to begin withdrawing troops from Iraq within four months of passage and to complete the withdrawal by March 31, 2008. At that time, no more funds would be made available to maintain troops in Iraq.50 The amendment was defeated 29–67. Senator Feingold’s effort was followed by an amendment proposed by Senator John Warner (R-VA). The proposed amendment required President Bush to report to Congress on the status of the benchmarks established to gauge the progress of the Iraqi government. If President Bush could not certify that satisfactory progress was being made, the amendment required that economic assistance to the Iraqi government be cut off.51 The Warner amendment was also defeated, this time by a 52–44 vote (60 votes were needed). The next effort to force the withdrawal of troops from Iraq came from Representative Ike Skelton (D-MO), who introduced the Responsible Redeployment from Iraq Act (H.R. 2956) on July 10, 2007. The bill would have directed the Secretary of Defense to begin the withdrawal of combat troops from Iraq 120 days after enactment of the act, with the withdrawal to be completed by April 1, 2008, leaving only a “limited presence” in Iraq to protect diplomatic missions, train the Iraqi armed forces, and fight al Qaeda.52 The bill passed the House, 223–201, and it was sent to the Senate, where it was referred to the Senate Committee on Foreign Relations and has received no action. For its part, the Senate began debate over an amendment to the 2008 Department of Defense appropriations bill in early July 2007. Senators Carl Levin (D-MI) and Jack Reed (D-RI) introduced an amendment which would require combat troop withdrawals to begin within 120 days of the bill’s passage, and set a nonbinding goal of total withdrawal by April 2008. The amendment was filibustered by Senate Republicans and the cloture motion to force a vote was defeated 52–47.53 Immediately following the defeat of the Levin-Reed amendment, Senator Jim Webb (D-VA) brought another amendment forward for consideration. On July 11, the Senate again failed to close debate on the Webb amendment, which would have imposed mandatory time intervals for rest and training between the overseas deployments of U.S. military units. Passage likely would have significantly hampered President Bush’s ability to implement the surge of U.S. troops, and might have prevented future escalations of troop levels as well.54 The following day, Senator Chuck Hagel (R-NE), one of the few Republicans who openly criticized the administration’s handling of the Iraq war, introduced a new amendment very similar to Webb’s. The Hagel amendment would have required that U.S. Army units not be deployed for more than 12 consecutive months, and Marines for no more than 7. While the amendment did contain a provision allowing

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the president, upon certifying a national emergency after consultation with Congress, to waive the requirements, this amendment too was filibustered, and the Senate again failed to pass a cloture motion.55 In November 2007, Congress began considering the Orderly and Responsible Iraq Redeployment Appropriations Act (H.R. 4156). This bill again attempted to require that the president begin withdrawing troops from Iraq. Section 105 read: Makes funds from this Act immediately available to plan and execute a safe and orderly redeployment of U.S. Armed Forces from Iraq. Directs the President to commence such redeployment within 30 days after this Act’s enactment, beginning with units that have been deployed in excess of 365 days. Sets as a goal to realize a limited presence and missions (protection of diplomatic facilities and American citizens, limited training and support of Iraqi Security Forces, and engaging in counterterrorism operations against al-Qaeda and other terrorist organizations in Iraq) by December 15, 2008. Requires quarterly reports from the Secretary of Defense (Secretary) to the congressional defense committees on the current plan, status, and efforts with respect to the reduction of U.S. forces in Iraq and their transition to a limited presence.56

The bill passed the House on November 14, 2007 in a 218–203 vote, but died in the Senate when cloture could not be achieved. Ultimately, Congress passed an omnibus spending bill at the end of 2007 containing most of the discretionary funding for 2008, including more than $70 billion in unrestricted funding for the conflicts in Iraq and Afghanistan. Passage of the bill effectively ended, for the time being, congressional efforts to use legislation to force the withdrawal of U.S. combat troops from Iraq. As the above history makes clear, the Democratic-controlled Congress relied primarily on two methods in its efforts to force an end to the Iraq war: ordering that U.S. troops be withdrawn by a particular deadline or timeline and imposing conditions that do not overtly demand a withdrawal but that, by virtue of their requirements, do so for all intents and purposes. Interestingly, in none of the bills mentioned above did Congress attempt to use its constitutionally-designated power of the purse to prevent funds from being used to maintain the troops in the field or continue prosecuting hostilities, as it did, for example, to prevent U.S. military operations in Cambodia during the Vietnam War. The Feingold amendment of May 2007 did contain language threatening to cut off funding, but would only do so in the event that the president failed to completely withdraw U.S. troops from Iraq by the deadline imposed in the amendment. Not once did Congress attempt to deny appropriations, or even to condition funds, to force the troops to come home.

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By not trying to use the power of the purse, the efforts by Congress in 2007 to force President Bush to end the U.S. involvement in Iraq were, most likely, unconstitutional. The president is designated by the Constitution as the commander in chief of the armed forces, a designation that is understood by nearly every political and legal analyst to give the president complete and absolute control over the command and deployment of the military. The decision whether to create a military lies with Congress, as does the power to determine whether a state of war exists as well as the power of the purse. But Congress may not command the troops. As the Supreme Court clearly stated in Hamdan v. Rumsfeld, “Congress [cannot intrude] upon the proper authority of the president . . . Congress cannot direct the conduct of campaigns.”57 Alexander Hamilton wrote that “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand,” and that the commander in chief power “amounts to nothing more than supreme command and direction of the military and naval forces.”58 In 1895, the Supreme Court confirmed Hamilton’s assessment, noting that the commander in chief power “[vests] in the president the supreme command over all the military forces, such supreme command as would be necessary to the prosecution of a successful war.”59 Louis Henkin writes that “the president has exercised full and exclusive control of the conduct of the war.”60 That this “full and exclusive control” includes the power to deploy or withdraw troops from a particular area or conflict is clear.61 David Rivkin and Lee Casey argue that while “the Constitution vests Congress with formidable authority to affect how the president fights wars . . . what Congress cannot do, however, is direct how a president prosecutes a particular war—including decisions about how many of the available forces to introduce into a theater of conflict.”62 The Supreme Court has, in several decisions, confirmed that Congress does not possess the power to order the troops into or out of a theater of operations. In a case stemming from the Mexican-American War, the Court ruled that “as commander in chief, [the president] is authorized to direct the movements of the naval and military forces placed by law at his command and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy.”63 Chief Justice Salmon P. Chase perhaps put it most clearly in his opinion in Ex Parte Milligan. While he recognized that Congress has “the power to provide by law for carrying on war” he defined that power as that which “necessarily extends to all legislation essential to the prosecution of war with vigor and success, except as such interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the president as commander-in-chief.”64

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It is fairly well accepted that whatever war powers Congress may have, those powers do not include the command of the armed forces. And yet, commanding the armed forces is exactly what Congress attempted to do in several of the failed pieces of legislation detailed above. Ordering the president or the secretary of defense to withdraw or redeploy the armed forces is tantamount to commanding the forces. Congress has formally authorized the hostilities in Iraq through the AUMF of October 2002. So long as a duly authorized conflict (and as chapter 2 makes clear, congressional authorization can come in many forms), deciding where and how to fight the enemy and use the troops provided by Congress is unquestionably and unalterably a power belonging to the president. In an editorial, the New York Times wrote that “legal scholars—both critics and supporters of the Iraq war—say that if Congress tries to manage the deployment and withdrawal of troops without cutting funds, the president’s powers as commander in chief would be encroached.” The article went on to quote Samuel Issacharoff, a law professor at New York University, as saying “if there were to be a binding resolution that said the troops had to go from 120,000 to 80,000 by April 15, Congress would be, in my view, transgressing on the conduct of a military campaign.”65 Similarly, Noah Feldman, a law professor also at New York University, argued against congressional efforts in early 2007 to prevent President Bush from increasing troop levels in Iraq saying that “once Congress has authorized a war, as it did the war in Iraq, the president’s power as commander in chief surely allows him to conduct the war without being micromanaged from Capitol Hill.” Feldman concluded that “so long as Congress does not want to end the war outright, it should stick to oversight and not try to dictate tactics.”66 Simply put, Congress may not order the armed forces of the United States to withdraw or redeploy from a duly authorized conflict. Nor may Congress impose conditions on the use of the armed forces that surreptitiously attempt to withdraw or redeploy the troops. Both the Webb and Hagel amendments of July 2007 sought to impose mandatory time intervals between troop deployments. Likewise, in February 2007, Representative John Murtha (D-PA) tried to insert language into the appropriations bill imposing a similar mandatory interval between deployments, as well as requiring that troops met specified levels of readiness prior to being deployed.67 Murtha’s effort was, according to the New York Times, “a back-door way of forcing lower troop numbers in Iraq” that would allow congressmen to “cast a politically safe vote for financing the war, while forcing the Pentagon to gradually reduce the number of active duty troops available to serve in Iraq.”68 According to Murtha, the purpose of the language was not really to improve troop readiness but to stop the surge of troops ordered to Iraq by the president, and his proposal

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was preferable to cutting money out of the appropriations bill because “it will be very hard to find fault” with a proposal that appears to be intended to protect troops, rather than one that seeks to end the war.69 During peacetime, Congress would be well within its rights, given its constitutional mandate to “make rules for the government and regulation of the land and naval forces,” to establish such requirements and restrictions on troop deployment. However, Congress may not use a constitutional power to achieve a nonconstitutional end, even one as broad as the power of the purse. As Louis Henkin argues, “what [Congress] cannot constitutionally regulate by legislation, it may not properly do by exercise of any ‘power of the purse.’ ”70 Since the ability to deploy, direct, and command the armed forces of the United States has been given to the president as the commander in chief and not to Congress, Congress may not effectively command the troops by imposing regulations or conditions. Congress is free to refuse to provide the president with troops for use in a particular conflict or region of the world, but once troops have been provided, especially pursuant to a conflict in which the president has been explicitly authorized by Congress to use “all necessary and appropriate force,” Congress may not use its regulatory or appropriations power to determine how much force is necessary and appropriate or how the president may use those troops.71 During the Clinton administration, Congress proposed legislation that would have prevented President Clinton from placing U.S. troops under the control of the United Nations, something the president wished to do in order to contribute U.S. forces to UN peacekeeping operations in the former Yugoslavia. In a brief for the legal adviser to the National Security Counsel, assistant attorney general Walter Dellinger wrote that the imposition of funding restrictions “would unconstitutionally constrain the president’s exercise of his authority as commander-in-chief and unconstitutionally undermine the president’s constitutional authority with respect to the conduct of diplomacy.”72 Dellinger notes that, in that case, Congress was trying to impose a restriction on the president’s ability to deploy troops and determine command structures by means of regulations on funds that had already been appropriated (monies for the troops). However, “that Congress has chosen to invade the president’s authority indirectly, through a condition on an appropriation, rather than through a direct mandate, is immaterial. Broad as Congress’ spending power undoubtedly is, it is clear that Congress may not deploy it to accomplish unconstitutional ends.”73 The same logic holds with respects to congressional efforts to stop the war in Iraq. Congress may deny funds to the president to maintain American troops in Iraq (as of all of the congressional efforts, only the Feingold amendment of May 2007 proposed to do), or forbid monies from being

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used to prosecute hostilities in Iraq. But Congress may not simply order the president to withdraw or redeploy the forces it has given to the commander in chief for use in a duly authorized conflict, nor may Congress tell the president how many troops are necessary to carry out the missions there. Similarly, Congress may not impose regulations on the armed forces the purposes of which, whether explicit or implicit, are to interfere with the president’s ability to deploy those forces. As the failed litany of congressional attempts to force a withdrawal of U.S. troops from Iraq makes clear, focusing war powers debates on the issue of deployment of troops and the conduct of hostilities is, to a large degree, a red herring for Congress. Even if the measures had passed—as did only one of them—there was not enough bipartisan support to override the inevitable presidential veto. And even if a two-thirds majority could have been mustered, given that the methods attempted were, most likely, unconstitutional, it is not at all clear that the orders would have survived judicial scrutiny. Furthermore, trying to defend a congressional role in war powers by relying on Congress to override presidential vetoes is a tall order indeed. Since the House of Representatives expanded to its current size of 435 members in the 63rd Congress (1913–1915), only seven times (out of the 47 Congresses that have sat since 1913) has one party possessed sufficient seats to override a presidential veto without help from the other party, and the last time that occurred was in 1977–1979.74 Similarly, since the Senate grew to 100 members in 1959, only once—in the 89th Congress of 1965–1967—did one party have enough seats to be able to override a veto without votes from the other party. Furthermore, in only seven Congresses did one party hold enough seats in the Senate to invoke cloture to end debate and bring a motion to a vote.75 If Congress is to be capable of playing a meaningful role in the prosecution of wars, trying to influence the control and deployment of the armed forces of the United States is not likely to be a fruitful route. Relying on a strategy that requires Congress to enact legislation that will inevitably draw a presidential veto all but guarantees that the president will prevail. As will be demonstrated in the following chapters, focusing congressional attention and effort away from troop deployment and on to other aspects of war powers allows Congress to proactively check the president’s war powers in areas where Congress is stronger and better able to take action. Such a refocusing would lead to a better balance in war powers than results from Congress’s futile attempts to curtail a power already claimed by the executive and for which the president’s powers are especially well matched. Congress is simply not well-suited to challenge the president on such matters as the deployment and command of the troops. As the most

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representative body of government, Congress tends to be a results-oriented body; the end result of a policy matters more than the process by which the result was achieved. Thus, Congress, as a body, is reluctant to challenge the president over constitutional powers while there is a chance that the president’s policies will be successful.76 In his classic work on Congress, James Sundquist addressed the unwillingness and unsuitability of the legislative branch to engage in policy making in areas such as war powers. For Sundquist, Congress’s problems: [Flow] from the very nature of the congressional animal, a creature compelled to nurture its relationship with the state or district that determines, at two- or six-year intervals, whether it lives or dies. The demands of the constituency are so urgent and incessant as to lead the members of Congress—House members in particular but senators as well—to concentrate on the role of representative of their areas, to deal with local and peripheral matters, avoid broader responsibility, and leave basic decisions to the president.77

This tendency of Congress results in a deep-seated problem: Concern over issues that more directly affect their constituents tends to distract congressmen from focusing on “fundamental issues of national policy,” and when Congress does focus on national issues, it tends to do so from a “local rather than a national viewpoint, producing the oft-criticized ‘parochialism’ and ‘irresponsibility’ of the Congress.”78 Questions about troop deployment, initiation of conflict, and military strategy are issues of a truly national character and, as such, are not wellsuited for congressional consideration. As the long history of essentially unchallenged presidential uses of force makes clear, Congress is either unwilling or unable to prevent the president from deploying force as the president sees fit. Even the few instances in which Congress has managed to exert its will are more exceptions that prove the rule, as they have all occurred in periods of particular presidential weakness—for example, the War Powers Resolution came out of the failure of Vietnam. Congress is, simply put, institutionally ill-designed to challenge the president on an issue that would force its members to accept responsibility for troop deployment that does not have direct implications for local constituencies. As Louis Fisher and Ryan Hendrickson write, “Congress may occasionally muster the energy to hold hearings and bark its complaints about a military mission in progress. But that is not the same as checking a president prior to war. It is rare to find a Congress that is willing to prevent a determined commander-in-chief from taking military action when he wants to.”79

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Given the institutional and political impediments to challenging the president over control of the armed forces, efforts to do just that may not be the best use of congressional time, resources, and political capital. For all of the political rhetoric, arm-twisting, filibusters, and squabbling over the troops in Iraq, and the surge in particular, Congress ended up giving President Bush everything he asked for. Meanwhile, it has fallen to the courts to protect domestic individual liberties, striking down several executive actions, like warrantless wiretapping and the detention policies for suspected terrorists. In the Boumediene decision, the Supreme Court even had to reject a policy of habeas corpus review that Congress had authorized on the grounds that it was insufficient to meet basic standards of protection (the Boumediene decision and other actions concerning the detention and trial of suspected terrorists will be addressed in chapter 5). Adhering to the balanced theory of war powers would lead Congress to focus its attention away from troop deployments and towards an area where its institutional and political characteristics are an asset: the consideration of domestic legislation and the protection of civil liberties. Being slower, more deliberative, and more directly connected to local constituencies, Congress is particularly well-suited to consider the potential effects and implications of legislation as well as the possibilities of infringements on civil liberties. Getting Congress to pay more attention to efforts by the executive branch to encroach on domestic legislative powers would, in and of itself, improve policy making, by making it more likely that executive policy would survive judicial scrutiny. Furthermore, a cooperative, rather than combative, relationship between the president and Congress would not only improve the policy making process from the congressional standpoint, but could even help increase the power of the presidency. Finally, the novel circumstances presented by the war on terrorism—undefined battlespaces, unidentifiable enemies, unforeseeable end—also require that Congress devote more attention to domestic legislation and the protection of domestic rights and liberties. Writing about the decisions concerning the detention of suspected terrorists, Jack Goldsmith argues that the Bush administration, assuming that neither Congress nor the Supreme Court would interfere with a wartime president’s decisions, implemented policies of dubious legality and constitutionality. This confidence, according to Goldsmith, came from looking at earlier wartime presidents, such as Lincoln and Roosevelt, who were permitted to expand presidential power broadly over domestic legislative issues without much opposition.80 Bush and his advisors missed two important differences: that both Lincoln and Roosevelt consulted extensively with Congress and, where possible, sought to obtain explicit congressional authorization for their policies, and that both the Civil War and World War II

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were formally declared wars in which Congress recognized the necessity of ceding legislative power to the president.81 As a result of this overconfidence, the Bush administration saw several of its policies struck down, which then “gave the administration the perfect opportunity to go to a Congress controlled by Republicans to get the entire terrorism program on a stronger and more explicit legal footing not driven by backward-looking legalisms.”82 However, out of concerns over diminishing the power of the presidency, the Bush administration continued to go it alone. After yet another defeat in the Supreme Court, the administration finally turned to Congress for passage of the Military Commissions Act of 2006 (examined in detail in chapter 5), which, in the opinion of Goldsmith, was both a victory and a defeat for the president. The victory came from obtaining a congressional imprimatur for many of the most controversial policies. However, the administration lost by not getting as much as it could have had it consulted with Congress earlier in the process.83 The distractions and inefficiencies caused by excessive attention to the power to control the deployment of the armed forces of the United States is not measured just in time spent to no avail. Encouraging competition, rather than cooperation, fosters an adversarial relationship between the two political branches which degrades the operational effectiveness of policy. Congress, the presidency, and the American people would all be better served if Congress turned its interest away from an issue that it is not likely to win towards one where its input is vital. Even if Congress does recognize that its constitutional war powers do not include the control and deployment of the armed forces, this does not mean that Congress has no ability to check an ill-advised presidential use of force. Congress still possesses many potent checks on the president, including on his ability to make war. The power of the purse, or the constitutional grant of the right to appropriate monies for the military, gives Congress perhaps its most powerful check on the president’s warmaking ability. If Congress ever objects to any action that president is taking, has taken, or might take, it can simply refuse to provide funding for the action in question. In this manner, Congress not only prevented President Nixon from expanding the Vietnam War into Laos, Thailand, and Vietnam, but brought an end to U.S. support of South Vietnam, forbade President Ford from challenging Cuban troops in Angola, and stopped President Reagan from arming the contra rebels against the government of Nicaragua.84 As one recent study on Congress’s ability to check presidential war powers argues, “those presidents who face large and cohesive congressional majorities from the opposite party exercise military force less regularly than do those whose party has secured a larger number of seats in Congress.”85 Operating according to the balanced theory of war powers will, however,

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establish a functionally and constitutionally sound distribution of power between the executive and legislative branches and ensure that that distribution persists into the future. CONGRESSIONAL EFFORTS TO CHECK PRESIDENT GEORGE W. BUSH IN IRAQ: DEAUTHORIZING THE IRAQ WAR Forcing the president to redeploy or withdraw U.S. troops from Iraq has not been the sole tactic considered by Congress. In February 2007, in addition to trying to force the president to redeploy or withdraw U.S. troops from Iraq, Democrats in the U.S. Senate proposed a resolution that would have revoked the authority given to President Bush in the AUMF of October 2002. The AUMF, which was ultimately used by the president as authority to invade Iraq, gave the president broad latitude to “defend the national security of the United States against the continuing threat posed by Iraq.”86 The AUMF essentially put all of the decision making power in the hands of the president, a move which Louis Fisher derided as yet another example of Congress refusing to perform its role as the people’s representatives and protectors of the nation’s republican government, choosing instead to give the president “unchecked power.” According to Fisher, “far from being a coequal branch, Congress was distinctly junior varsity. It no longer functioned as an authorizing body. Its task was simply to endorse what the president had already decided.”87 Senator Carl Levin (D-MI), the chair of the Senate Armed Services committee, led the move to revoke the AUMF, saying that the authorization as it stood was “a wide open authorization which allowed [President Bush] to do just about anything and put [the United States] deep into combat in Iraq, and now into the neighborhoods of Baghdad.”88 According to Levin, altering or rescinding Congress’s authorization was more politically palatable than cutting off funding to the troops, and the proposed alteration sought to modify the U.S. mission in Iraq from combating Iraqi sectarian militias that challenge the power of the government to supporting and training Iraqi governmental forces, with combat operations limited to ones against al Qaeda and other foreign insurgents. According to Levin, the resolution was “a modification of that authorization [the AUMF] in order to limit the mission of American troops to a support mission, instead of a combat mission, and that is very different from cutting off funds.” Senate Foreign Relations Committee Chairman Joseph Biden (D-DE) agreed with Levin about the need to “repeal and restate the president’s authority, [making] it clear that he has troops in [Iraq] to protect against al Qaeda gaining chunks of territory [and to] train the Iraqi forces, [not to] get in the

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midst of a civil war.”89 Ultimately, the effort to revoke the war authorization failed, as enough votes to invoke cloture and move to a vote on the proposal could not be mustered. As a tactic to force President Bush to end the war in Iraq, attempting to alter or revoke the AUMF is on stronger ground than is ordering the president to redeploy or withdraw U.S. armed forces. Certainly, the congressional power to declare war could conceivably encompass the power to authorize when, where, and against whom the president is allowed to conduct military operations. However, the Bush administration has, on several occasions, made it clear that it considers its right to conduct military operations in Iraq and against al Qaeda comes not from Congress but from the Constitution itself. In his March 21, 2003 report to Congress on the initiation of military action against Iraq, President Bush announced that “pursuant to my authority as Commander in Chief and consistent with the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102–1) and the Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107–243), I directed U.S. armed forces, operating with other coalition forces, to commence combat operations on March 19, 2003 against Iraq.”90 The use of the words “pursuant” and “consistent” is part of a historical pattern in which presidents have behaved in accordance with congressional wishes, regulations, and restrictions on the use of military force but have not admitted a legal or constitutional requirement to do so, preferring instead to justify their actions as being authorized under their constitutional role as commander in chief. As President Bush made clear to Congress, he sees that his authority to initiate military operations against Iraq comes from the Constitution, and it is but a coincidence, albeit a happy one, that Congress has agreed in this case that he does indeed have the power to do so. This argument—that the president does not need specific authorization from Congress on issues of war powers because his role as commander in chief gives the president constitutional authority to defend the nation— appears in many of the legal briefs produced by the Justice Department during the war on terrorism to defend actions by President Bush. In a brief written several days after the attacks of September 11, the Office of Legal Counsel concluded that “the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign relations, to use military force abroad—especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States.”91 The brief went on to conclude that “construing the Constitution to grant [the power to conduct military hostilities] to another branch could prevent the President from exercising his core constitutional responsibilities in foreign affairs.”92 In

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a brief to Congress explaining the legal justification for the National Security Agency’s warrantless domestic surveillance program, attorney general Alberto Gonzales argued that “the NSA activities are supported by the President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs” and that “the Constitution gives [the President] all necessary authority to protect the Nation from armed attack,” and that warrantless wiretapping was legal under that authority.93 And in nearly all of the Supreme Court cases concerning the detention and trial of suspected enemy combatants, including the Hamdi and Hamdan cases, the government asserted its authority, independent of any congressional authorization or silence, to act in the ways in question, claiming, in the case of Hamdan, that “the President’s war power under Article II, Section 2, of the Constitution includes the inherent authority to create military commissions even in the absence of any statutory authorization, because that authority is a necessary and long-standing component of his war powers.”94 A congressional effort to deny or revoke an existing authorization such as the AUMF would clearly run afoul of the administration’s claim that, while legislative authorization is politically helpful, such authorization is constitutionally unnecessary. It is unclear how a contest between Congress and the president would be resolved if they were to come to loggerheads over this issue, as the Supreme Court has never decided a case in which Congress was trying to deny the president permission to use force abroad. But leaving this question to be determined by the courts would create an all-or-nothing outcome that, no matter who wins, is likely to be detrimental for the conduct of American foreign policy. If the courts determined that the president does, in fact, need explicit congressional authorization for each and every use of force, American foreign policy could be hamstrung while the president waits for an inefficient and politically timid Congress to decide on the proper course of action. Charles Krauthammer, commenting on Congress’s effort to revoke the AUMF, argued that “slowly bleeding our forces by . . . rewording the authorization of the use of force so that lawyers decide what operations are to be launched (the Senate approach) is no way to fight a war. It is no way to end a war. It is a way to complicate the war and make it inherently unwinnable—and to shirk the political responsibility for doing so.”95 On the other hand, if the courts found that the president’s role as commander in chief and “sole organ of the Nation in foreign policy” includes inherent authority to act without congressional approval, the president would be given such broad powers in times of crisis as to threaten the constitutional framework of American government and individual civil liberties. Both of these are poor outcomes, particularly from a functional perspective.

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It is much more desirable to develop a theory, like the balanced theory of war powers presented here, that divides war powers in a manner that is both functional and theoretically sound. Accepting that the president’s role as commander in chief should include the power to deploy troops abroad and initiate military operations without excessive interference from Congress—Congress always retains the ability to check the president’s commander in chief power by refusing to appropriate funds for the military—refocuses Congress’s attention on domestic issues that it is better suited to deal with, such as the protection of individual civil liberties. As chapters 4 and 5 will demonstrate, Congress has been derelict in this duty during the war on terrorism, which has encouraged the executive branch to seek an expanded definition of its power and has left the courts to clean up the mess. In a war with an indefinite duration and a significant domestic component, it is essential that the most representative body as well as the one responsible for enacting legislation be involved in a productive manner with protecting not only the rights of Americans and those subject to U.S. jurisdiction but also the basic balance of power between the branches of government.

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Chapter 4

DOMESTIC WARRANTLESS SURVEILLANCE BY THE NATIONAL SECURITY AGENCY

On December 16, 2005, the New York Times ran an article revealing that the Bush administration had, in the months immediately following the attacks of September 11, 2001, secretly authorized the National Security Agency (NSA) to monitor the international telephone and e-mail communications of “hundreds, perhaps thousands, of people inside the United States without warrants in an effort to track possible ‘dirty numbers’ linked to al Qaeda.”1 The resulting firestorm from the disclosure was extremely fierce as civil liberties activists, scholars, and pundits from all political perspectives weighed in on the legality and constitutionality of the surveillance program. Supporters of the president’s action argued that while Congress may not have explicitly voted to endorse the program, President Bush possessed authorization from a variety of sources, including the AUMF of September 18, 2001 and the president’s role as commander in chief. Critics saw the program as a violation not only of basic constitutional rights such as the right to privacy, but as a breach of U.S. law, since the NSA program seemed to violate the Foreign Intelligence Surveillance Act (FISA) passed by Congress in 1978. A CNN/USA Today/Gallup poll taken less than a month after the exposure of the program revealed a domestic audience evenly split on the appropriateness of the surveillance: 50 percent of respondents believed that it was acceptable for the president to authorize warrantless wiretapping of people suspected of having ties to international terrorists, while 46 percent said that the policy was wrong and could not be justified.2 The program in question involved surveillance by the National Security Agency of international communications between an individual located

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within the United States and one located outside of the nation’s borders: If both parties are located in other countries, no FISA warrant is needed; if both parties are in the United States, no FISA warrant is possible. According to the NSA, “the NSA terrorist surveillance program . . . is only focused on members of al Qaeda and affiliated groups. Communications are only intercepted if there is a reasonable basis to believe that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda.”3 Normally, surveillance of this kind would be subject to the rules of FISA, and the Justice Department would have to submit an application to a special FISA court demonstrating probable cause that one or both of the targets is an “agent of a foreign power.”4 But, given the concerns about the fleeting and mobile nature of terrorists, President Bush authorized the NSA to conduct such surveillance without first obtaining a warrant from the FISA court. President Bush and members of his administration moved quickly to offer justifications for the warrantless wiretapping program. Little more than a month after the disclosure of the wiretapping program by the Times, the Bush administration released a memo written by attorney general Alberto Gonzales that provided legal arguments defending the necessity, legality, and constitutionality of the surveillance. The memo—which will be explored in greater detail in the following sections—made two basic arguments. First, the memo asserted that “the Authorization for the Use of Military Force [passed by the United States Congress on September 18, 2001 in response to the September 11 attacks] places the President at the zenith of his powers in authorizing the NSA activities.”5 Attorney General Gonzales further explained this point in a speech at the Georgetown University Law Center, in which he claimed that: The President’s authority to take military action—including the use of communications intelligence targeted at the enemy—does not come merely from his inherent constitutional powers. It comes directly from Congress as well. First, [Congress] expressly recognized the President’s authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States. Second, it supplemented that authority by authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” in order to prevent further attacks on the United States. The Resolution means that the President’s authority to use military force against those terrorist groups is at its maximum because he is acting with the express authorization of Congress.6

President Bush echoed this logic, arguing that “Congress gave the President additional authority to use the traditional tools—or ‘fundamental

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incidents’—of war in the fight against terror when Congress passed the authorization for the use of military force in 2001.”7 Thus, according to this line of thought, Congress has, through the AUMF of September 18, 2001, explicitly authorized the president to bypass the FISA requirements and approved of the president’s power to conduct warrantless surveillance of suspected terrorists. The second argument advanced by the Bush administration is that regardless of congressional authorization, the president possesses all the authority he needs under the Constitution to authorize the NSA program. In this line of reasoning the president’s role as commander in chief of the armed forces and his position as “sole organ” of the United States in its foreign policy “grants the president inherent power to protect the Nation from foreign attack.”8 Since the president’s power to defend the United States from foreign attack comes from the Constitution, since surveillance is a “fundamental incident” of the power to defend the United States, and since Congress cannot use legislation to take away a constitutional grant of power, regulations such as FISA cannot interfere with the president’s powers. Any attempt by Congress to prevent the president from protecting the nation or to regulate the way in which he does so is, under this argument, unconstitutional. Despite President Bush’s defense of the NSA program, many commentators and analysts saw the warrantless wiretapping as likely illegal and unconstitutional. Geoffrey Stone of the Law School of the University of Chicago wrote that the program “was a direct violation of federal law and the United States Constitution.”9 Richard Epstein, also of the University of Chicago Law School, warned that “if we accept executive power on steroids, then what’s to be done if a reckless president drags our nation into foolish conflicts?” According to Epstein, the Constitution gave Congress the power to “alter the rules of the game”—in this case, determining whether the procedures set out in FISA should be ignored or altered—and “over the long haul, we’ll do best by sticking to the original game plan on military matters.”10 Stephen Vladeck of American University’s Washington College of Law wrote that “there is something more than a little bit scary about the argument that the President has the inherent constitutional authority to act domestically in whatever fashion he sees fit to ‘defend’ the nation from terrorists.”11 In a letter written to various members of Congress (and made public on the University of Chicago Law School Faculty blog), a group of prominent legal scholars argued that the implicit authorization possibly contained within the AUMF (the authors did not concede that the AUMF authorized the surveillance, but hypothesized as if it had) could not override FISA’s explicit regulation of domestic wiretapping, especially when combined with the Fourth Amendment’s restriction on

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warrantless searches.12 The Congressional Research Service, in a memo entitled Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, argued that it is difficult to conclude that the passage of FISA does not represent a specific and explicit congressional intention to limit and regulate domestic surveillance operations. Furthermore, the fact that FISA grants a 15-day period immediately following a declaration of war in which the president could conduct warrantless surveillance suggests that “Congress seems clearly to have contemplated that FISA would continue to operate during war.”13 The disagreement over the legality and constitutionality of the NSA surveillance program came to a head before the United States District Court for the Eastern District of Michigan in a suit filed by the American Civil Liberties Union. In ACLU v. National Security Agency, judge Anna Diggs Taylor ruled on August 17, 2006, that President Bush’s authorization of warrantless domestic surveillance by the NSA was illegal and ordered the program immediately halted.14 However, “even legal experts who agreed with a federal judge’s conclusion . . . that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric” because “discomfort with the quality of the decision is almost universal.”15 The case was ultimately dismissed on procedural grounds by the United States Court of Appeals for the Sixth Circuit.16 Nevertheless, in January 2007, the Bush administration decided to abandon the warrantless program and agreed to run all requests for domestic surveillance through the FISA courts as well as to seek congressional legislative backing for continued surveillance.17 Although Congress ultimately passed legislation approximating the president’s desire to be free from the warrant requirement, the fundamental questions at the heart of the matter were never ultimately resolved.18 In authorizing President Bush to use force against international terrorist organizations, did Congress also authorize the president to conduct domestic surveillance without warrants? Do the president’s inherent war powers allow him to ignore existing statutes and regulations when implementing policies deemed necessary for the defense of the country? While these questions are indeed important, they do not go to the heart of the debate over war powers. As the preceding chapters make clear, it is just as important to consider whether domestic surveillance is a power that is best understood as belonging to the executive branch, or whether it should be controlled by the hands of the legislative branch. While none of the branches of government has so far been able to answer this last question definitively, the balanced theory of war powers presented here helps us understand in which branch the power to regulate and conduct

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surveillance during the war on terrorism should be lodged. First, however, we must examine the president’s claims in greater detail. THE DEBATE OVER THE NATIONAL SECURITY AGENCY’S WARRANTLESS DOMESTIC SURVEILLANCE The clearest and most comprehensive defense of the legality of the NSA’s surveillance program is contained in the January 19, 2006, memo written by attorney general Alberto Gonzales. Therein, Gonzales sets out three arguments that we will consider here: First, that “warrantless communications intelligence targeted at the enemy in time of armed conflict is a traditional and fundamental incident of the use of military force authorized by the AUMF [of September 18, 2001]”19; second, that “the NSA activities are consistent with the preexisting statutory framework generally applicable to the interception of communications in the United States”20; and third, that the “the NSA activities are supported by the President’s wellrecognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs.”21 One of the strongest arguments advanced by the Bush administration is that the AUMF passed in the wake of the September 11 attacks should be understood to function as an explicit authorization of the president’s power to conduct warrantless surveillance. As Gonzales notes, “[the AUMF’s] expansive language authorizes the President ‘to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.’”22 This language has the effect, according to Gonzales, of giving the president any and all war powers that would be necessary to fulfill the purposes of the AUMF. Gonzales continues to note that in the Hamdi decision “a plurality of the [Supreme] Court concluded that detention of combatants who fought against the United States as part of an organization ‘known to have supported’ al Qaeda is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.” Thus, “even though the AUMF does not say anything expressly about detention, the Court nevertheless found that it satisfied [a statutory] requirement that detention be congressionally authorized.”23 In other words, write two legal scholars, “the clear inference is that the AUMF authorizes what the laws of war permit.”24 The question then becomes whether surveillance such as that conducted by the NSA should be considered a fundamental incident of war and thus authorized by the AUMF.

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As one commentator notes, “there is nothing unreasonable about intercepting potential enemy communications in wartime.”25 John Yoo concurs with this assessment, arguing that “gathering intelligence has long been understood as a legitimate aspect of conducting war; indeed it has been critical to the successful use of force.”26 Yoo writes: General Washington used spies extensively during the Revolutionary War, and as President he established a secret fund for spying that existed until the creation of the CIA. President Lincoln hired spies during the Civil War, a practice the Supreme Court upheld. In both World Wars I and II, presidents ordered the interception of electronic communications leaving the United States. Some of America’s greatest wartime intelligence successes have involved SIGINT—intelligence based on signals—most notably the breaking of Japanese diplomatic and naval codes during World War II, which allowed the U.S. Navy to anticipate the attack on Midway Island. SIGINT is even more important in this war than in those of the last century. Al Qaeda has launched a variety of efforts to attack the United States, and it intends to continue them. The primary way to stop those attacks is to capture al Qaeda operatives who have infiltrated the United States. One of the best ways to find them is to intercept their electronic communications entering or leaving the country.27

Gonzales makes the case that surveillance should be understood as a fundamental incident of war powers by pointing to international law. For example, “article 24 of the Hague Regulations of 1907 expressly states that ‘the employment of measures necessary for obtaining information about the enemy and the country [is] considered permissible.’ ”28 Another expert in international law is quoted as saying: It is essential in warfare for a belligerent to be as fully informed as possible about the enemy—his strength, his weaknesses, measures taken by him and measures contemplated by him. This applies not only to military matters, but . . . anything which bears on and is material to his ability to wage the war in which he is engaged. The laws of war recognize and sanction this aspect of warfare.29

Gonzales continues to make the case that not only is surveillance a fundamental incident of war, but that warrantless surveillance is as well. “Warrantless electronic surveillance of wartime communications has been conducted in the United States since electronic communications have existed.”30 Gonzales lists examples of warrantless electronic surveillance occurring during the Spanish-American War, World War I (“shortly after Congress declared war on Germany, President Wilson [citing only his constitutional powers and the joint resolution declaring war] ordered the

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censorship of messages sent outside the United States”), and World War II (“President Roosevelt authorized warrantless electronic surveillance of persons suspected of subversive activities, including spying, against the United States”).31 He concludes by asserting that “the NSA activities fit squarely within the sweeping terms of the AUMF. The use of signals intelligence to identify and pinpoint the enemy is a traditional component of war . . . accordingly, the President has the authority to conduct warrantless electronic surveillance against the declared enemy of the United States in a time of armed conflict.”32 The Bush administration also argues that even if the AUMF cannot be read so as to constitute explicit congressional authorization for the wiretapping program, the FISA legislation “expressly contemplates that a later legislative enactment could authorize electronic surveillance outside the procedures set forth in FISA” and that “the AUMF constitutes precisely such an enactment.”33 Section 109 of the FISA statute makes it illegal for any person to “engage . . . in electronic surveillance under color of law except as authorized by statute.”34 As interpreted by the Bush administration, “the use of the term ‘statute’ here is significant, because it strongly suggests that any subsequent authorizing statute, not one that merely amends FISA itself, could legitimately authorize surveillance outside FISA’s standard procedural requirements.”35 So, if the AUMF authorizes the president to use his war powers, and if his war powers include warrantless electronic surveillance, and if the AUMF is a statute, then the grant of power in the AUMF can supersede the regulatory process established in FISA. It follows that the next task for the Bush administration is to demonstrate that the AUMF is such a statute as defined under FISA. In doing so, Gonzales makes three arguments that are vital for the analysis here. First, he argues that “the longstanding history of communications intelligence as a fundamental incident of the use of force and the Supreme Court’s decision [that the AUMF activated the war powers of the president] strongly suggest that the AUMF satisfies the requirement of section 109 of FISA for statutory authorization of electronic surveillance.” Second, Gonzales writes that “for Congress to have a role in [defending the United States from foreign attack], it must be able to act with similar speed [to that of the president], either to lend its support to, or to signal its disagreement with, proposed military action,” and therefore “Congress must be able to use broad language that effectively sanctions the President’s use of the core incidents of military force,” which is “precisely what Congress did when it passed the AUMF on September 14, 2001.”36 Finally, Gonzales refers to the very nature of the AUMF itself, arguing that since, historically, “a formal declaration of war was no longer than a sentence,” while in contrast “authorizations for the use of military force are typically more detailed

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and are made for the specific purpose of reciting the manner in which Congress has authorized the President to act . . . Congress could reasonably expect that [an AUMF] would address the issue of wartime surveillance.”37 Gonzales is arguing that by passing an AUMF Congress should have been aware that it would be read as a more or less complete description of what Congress was authorizing the president to do. Therefore, given the broad language of the AUMF (“all necessary and appropriate force”), Congress should have understood that the president would take a broad interpretation as to what actions he was authorized to take and that, therefore, the AUMF fulfills the statutory requirement in FISA. Perhaps the broadest argument made in defense of the warrantless surveillance is that actions such as domestic wiretapping inherently fall under the scope of executive power and constitutionally belong to the president. Gonzales makes this point quite explicitly: “the President has inherent constitutional authority to order warrantless foreign intelligence surveillance.”38 Under this argument it does not matter whether Congress intended to activate the president’s war powers or whether FISA allows the AUMF to override its prohibitions. In fact, any effort by Congress intended to limit the president’s ability to conduct foreign intelligence surveillance would be in and of itself unconstitutional. This argument was echoed by many outside observers, legal analysts, and commentators. John Schmidt, an assistant attorney general under Bill Clinton, writes that “FISA does not anticipate a post-September 11 situation” and that “what was needed after September 11, according to the President, was surveillance beyond what could be authorized under [FISA’s] individualized case-by-case judgment.” And while Schmidt acknowledges that “of course” Americans should be worried about such unbounded “inherent presidential power,” he also warns that “we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by September 11.” He goes on to argue that “the Constitution [does not] allow Congress to take away from the president the inherent authority to act in response to a foreign attack.”39 In a Wall Street Journal op-ed piece, Robert Turner of the University of Virginia makes a similar argument, claiming that the attorney general was “right to refuse to be bound by unconstitutional acts of Congress like FISA that usurp presidential power.”40 According to Turner, both Congress and the executive branch have repeatedly recognized the president’s inherent authority to conduct foreign intelligence surveillance. Turner notes that “when Congress passed the first wiretap statute in 1968, it expressly declared that nothing in it would limit ‘the constitutional power of the president’ to collect foreign intelligence information” and that “Carter administration attorney general Griffin Bell told the Senate that FISA ‘does

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not take away the power of the President under the Constitution.’ ” Finally, Turner points to a unanimous 2002 opinion from the Foreign Intelligence Surveillance Court of Review that noted “every federal court to decide the issue held the president has constitutional power to authorize warrantless foreign intelligence electronic surveillance,” and that “FISA could not encroach on the President’s constitutional power.”41 In a January 2006 letter to Representative James Sensenbrenner, then the chair of the House Judiciary Committee, John Eastman of the Chapman University School of Law invoked the famous Curtiss-Wright decision to make the case that the NSA program should not be subject to congressional interference. According to Eastman, “as ‘sole organ’ in the foreign affairs arena, the President has inherent constitutional authority . . . to conduct surveillance of communications with enemies of the United States and the people he reasonably believes to be working with them.”42 Eastman went on to compare congressional efforts to use FISA to regulate President Bush’s power to an attempt by Congress in 1800 to restrict the president’s treaty-making power, concluding that both efforts would be unconstitutional, because “the Supreme Court in Curtiss-Wright was manifestly clear that Congress had no authority to intrude upon the President’s constitutional powers in the foreign arena.” Andrew McCarthy points to the 1967 Supreme Court decision in Katz v. United States in which, while affirming that the Fourth Amendment extended to electronic surveillance, the Court specifically exempted “national security” monitoring from the scope of the decision.43 Subsequently, in the 1972 case United States v. United States District Court (also known as the Keith case), the Court did rule that “a judicial warrant was required for national security surveillance if the target was a purely domestic threat” but “took pains to exempt from its ruling ‘the activities of foreign powers or their agents.’ ”44 Together, McCarthy and Eastman argue that the courts have recognized the president’s inherent authority over domestic electronic surveillance, while Turner argues that Congress also has acknowledged that authority. Gonzales’s defense of the inherent power of the president begins with the Curtiss-Wright decision, citing that “as the Supreme Court has explained ‘the President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.’ ”45 He goes on to argue that the chief executive must have the requisite power to do the job of running the country, and that “because of the structural advantages of the Executive Branch, the Founders also intended that the President would have the primary responsibility and necessary authority as Commander in Chief and Chief Executive to protect the Nation and to conduct the Nation’s foreign affairs.” Furthermore, “a consistent understanding has developed that

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the President has inherent constitutional authority to conduct warrantless searches and surveillance within the United States for foreign intelligence purposes.”46 Gonzales goes on to make many of the same arguments advanced by the law professors and legal analysts presented earlier. First, he cites the 2002 decision by the Foreign Intelligence Surveillance Court of Review in In re: Sealed Case, in which the court stated that “all the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”47 Gonzales also references the Keith case, stating that “the Court in the Keith case made clear that it was not addressing the President’s authority to conduct foreign intelligence surveillance without a warrant and that it was expressly reserving that question.”48 And, even though the Keith case ultimately did extend the warrant requirement of the Fourth Amendment to investigations involving domestic threats to security, Gonzales argues that “foreign intelligence surveillance such as the NSA activities differs fundamentally from the domestic security surveillance at issue in Keith . . . [because] the President has uniquely strong constitutional powers in matters pertaining to foreign affairs and national security.”49 The final argument supporting the inherent power of the president to conduct warrantless wiretapping mustered by Gonzales is that, ultimately, “among the President’s most basic constitutional duties is the duty to protect the Nation from armed attack” and that “in exercising [this duty], the President has wide discretion, consistent with the Constitution, over the methods of gathering intelligence about the Nation’s enemies in a time of armed conflict.”50 He refers to several cases, including the Prize Cases, to demonstrate that it is well accepted that the president has inherent authority to use force according to his own discretion in defending the country from armed attack. All together, the arguments of Gonzales and of those outside the government about the inherent power of the president revolve around one basic point that is inextricably tied to the theory of balanced war powers: that surveillance should be considered a tool best exercised by the executive. This general assumption about the inherently executive nature of surveillance is present in Gonzales’s other arguments as well. The claim that the NSA program was authorized by the AUMF rests on an assertion that domestic warrantless wiretapping should be considered a “fundamental incident” of war and thus part of the president’s inherent war powers as commander in chief. Even the argument that the AUMF should be interpreted under FISA as a statute authorizing processes other than those permitted under FISA is

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ultimately based on an understanding of surveillance as an executive power. Gonzales asserts that while the AUMF does not mention anything about allowing the president to conduct warrantless wiretapping, the Founders intended the president to have “primary constitutional authority to defend the Nation from foreign attack” because “the Executive can act quickly, decisively, and flexibly” as opposed to Congress.51 And, since surveillance is unquestionably a vital tool in defending the nation, and because it would have been “wholly impractical to demand that Congress specifically amend FISA,” it must be understood that the AUMF was intended to serve as a statutory authorization of warrantless domestic wiretapping. Unsurprisingly, these arguments sound similar to those advanced in support of the balanced theory of war powers: that the power to defend the nation is essentially an executive power and that declarations of war transfer broad legislative power to the president. However, as the following section will make clear, while the power to command troops is clearly an executive power, domestic surveillance is a much more complicated question. As I shall demonstrate, it is much sounder to view domestic surveillance as an essentially legislative power that should remain firmly under the control of Congress. DOMESTIC SURVEILLANCE AS A LEGISLATIVE POWER Why should domestic surveillance be seen as a fundamentally different power than deploying troops and initiating hostilities? Both are actions taken in defense of the country, and as the memo by Gonzales makes clear, communications surveillance has, unquestionably, traditionally been part and parcel of any war effort. That, in essence, is the heart of the administration’s defense of the NSA surveillance program: that the United States is currently in a war that has been declared by Congress, thereby activating the president’s full complement of war powers (although the president’s constitutional powers would empower him to act even if Congress had not declared war) which necessarily includes wiretapping, which has traditionally been a fundamental incident of war. However, that argument is predicated, at least to some degree, on a false premise: that the surveillance conducted by the National Security Agency after the September 11 attacks was fundamentally similar to the surveillance operations conducted in the other wars described by Gonzales and the program’s supporters. But it is not at all clear that they are fundamentally similar. And if they are indeed not similar, it does not necessarily follow that the domestic warrantless wiretapping authorized by President Bush should be understood as a fundamental incident of the war on terror.

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In defense of his claim that warrantless wartime surveillance is a “fundamental incident” of war, Gonzales makes reference to the following examples: George Washington, who intercepted British mail during the American Revolutionary War to gain information on British military strength and positions; Confederate General J.E.B. Stuart, who intercepted Union telegraphic communications during the Civil War; the U.S. Army’s interception of Pancho Villa’s messages during the Spanish-American War; President Wilson’s censoring of messages leaving the United States during World War I as well as the use of “wireless telegraphy that ‘enabled each belligerent to tap the messages of the enemy;’ ” and multiple instances of surveillance immediately prior to and during World War II, including “warrantless electronic surveillance of persons suspected of subversive activities.”52 Making the same argument, John Yoo states that “General Washington used spies extensively during the Revolutionary War,” that “President Lincoln personally hired spies during the Civil War,” and that “in both World Wars I and II, presidents ordered the interception of electronic communications leaving the United States.”53 All of the instances listed have several characteristics in common. In each of them there was a clearly defined battlefront, a clearly defined enemy, clearly defined war aims, and a conceivable end. Even when the purpose of the surveillance was to root out those spying for the enemy (as in World War II) who would not have perhaps been obviously identifiable as a member of the enemy’s armed forces, there still would have been some way of tracing those spies directly to the enemy government that employed them. Furthermore, all of these examples (except for the Revolutionary War, which obviously took place before the drafting and adoption of the Constitution and the creation of Congress) occurred under formal declarations of war, or in the case of the Civil War, a functionally identical legislative alternative. The war on terrorism presents conditions different from the conflicts offered as precedents here. It has no identifiable front lines, few identifiable enemies, poorly defined war aims, and no foreseeable end. And these differences are not just semantic. As Justice O’Connor wrote in the Hamdi decision, “if the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding [of what should powers be considered “fundamental incidents” of war] may unravel.”54 In Hamdi, the Supreme Court found that the Bush administration could indeed indefinitely detain individuals seized on the battlefield in Afghanistan and accused of fighting on behalf of the Taliban because “detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war.”55 However, O’Connor’s opinion was careful to note that this decision was predicated on the fact

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that the American military operations in Afghanistan closely resembled traditional military operations, in that they were directed against the government (the Taliban) of a (more or less) traditional state. It certainly stretches the imagination to argue that giving the president of the United States unchecked powers to conduct domestic surveillance operations indefinitely against U.S. citizens or residents in order to determine whether they might be agents of a foreign terrorist organization resembles the “practical circumstances” that “informed the development of the law of war.” These differences seem to suggest that the president’s inherent plenary war powers may not include domestic warrantless wiretapping. Furthermore, the unique nature of the war on terrorism means that we must not only question the traditional tools of fighting, but that we must also think carefully about the relationship between strategy and the war aims. Audrey Kurth Cronin writes that: International terrorism is not dangerous because it can defeat us in a [conventional] war, but because it can destroy the domestic contract of the state by further undermining its ability to protect its citizens from attack. The . . . greatest danger is not defeat on the battlefield but damage to the integrity and value of the state . . . The use of terrorism implies an attempt to de-legitimize . . . the structure of the state system itself.56

This quotation cuts both ways. On the one hand, it suggests that the state must be able to protect its citizens, and if it cannot, the people will lose faith in their government. On the other, however, it also seems to suggest that the people must respect the values of their government, and that those values must not be sacrificed in blind pursuit of security. Philip Bobbitt echoes this latter concern, writing that “it is also important to be clear about what we are fighting for. A state of consent [like the United States] in the current era is not merely one whose elections reflect majoritarian practices but one which rests on the protection of certain fundamental rights—inalienable rights, a legal term that means rights that cannot be ceded, or bartered, or sold.”57 Bobbitt continues on this theme, arguing that the decision by the Bush administration to ignore FISA and secretly authorize the NSA program was particularly damaging. He writes that “when [President Bush] decides not to enforce a statutory provision because the measure is, in his view, unconstitutional and neglects to say so (much less why), he sacrifices the legitimacy that comes from the public’s understanding of the decision and undermines our system of public consent. Moreover, when secret policies are exposed, the appearance of indifference to law is heightened, which can only damage U.S. war aims in the Wars against Terror.”58 Thus, the immediate efficacy of the policy in question cannot be the sole determinant of its legitimacy, legality, or

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constitutionality. An effective policy that undermines the consensual nature of the country or that erodes “certain fundamental rights” may ultimately do more harm than good. This reconfiguration of the relationship between strategy and tactics in the war on terrorism raises further doubts about the status of warrantless and unregulated domestic surveillance as a fundamental incident of war. But, the Bush administration responds, it does not matter that the nature of the war on terrorism is sufficiently different from that of “traditional” warfare as to throw into doubt surveillance’s status as a “fundamental incident” of war. Surveillance, the administration claims, is an inherent power of the president’s role as commander in chief, or sole organ of the nation in foreign policy, or simply of his role as chief executive of the United States with a charge to ensure that the laws of the United States be faithfully executed. However, President Bush is not only arguing for the power to conduct surveillance against an identifiable foreign enemy, but also against U.S. persons, who may or may not be affiliated with the enemy in a war in which victory may never be achieved. President Bush is claiming, in essence, inherent executive power to conduct warrantless surveillance indefinitely against domestic targets who are, allegedly, in contact with a foreign enemy. Given the mistrust of executive power that unquestionably motivated the Founders and was embodied in the Bill of Rights, it seems difficult to argue that unlimited and unchecked domestic surveillance powers would have been understood as inherently belonging to the president. This then raises the following question: Should U.S.-based members or affiliates of al Qaeda be understood as a domestic or a foreign threat? The Keith decision, used by the NSA program’s supporters, hinges to a large degree on this distinction, as it established that Fourth Amendment protections, which would include warrant requirements, do apply to domestic intelligence surveillance. However, Keith did not rule on whether the Fourth Amendment applied to foreign threats as well. The program’s supporters assert that al Qaeda is fundamentally a foreign threat and therefore its members, even those operating within the United States, are not protected by the Keith ruling. But the undefined nature of the war on terrorism makes the status of domestic al Qaeda members unclear. During the Cold War, under a more traditional paradigm of threat, it was easier to decide what was a domestic threat and what was a foreign threat. A Soviet diplomat or a U.S. citizen working in the pay of the KGB represented a foreign threat; a member of the Earth Liberation Front or the Weather Underground was a domestic threat. And the distinction is not simply semantic; otherwise a terrorist threat would be a terrorist threat, whether domestic or foreign, and all would be dealt with in the same manner. It

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is constitutionally important to distinguish between domestic threats, the perpetrators of which enjoy robust constitutional protections, and foreign threats, whose constitutional rights are more limited. Such classifications are especially complicated in the case of al Qaeda. While al Qaeda is, to some degree, a worldwide organization, it is also believed to have evolved—largely as a result of the destruction of its safe haven in Taliban-controlled Afghanistan—into a highly decentralized organization, which means that “it is not essential to be formally ‘in’ al Qaeda in order to carry out attacks”59 and that al Qaeda has become “more of an ideology than an organization.”60 And while some analysts believe that al Qaeda is reconstituting itself into a more traditional and hierarchical organization in the safety of the lawless and mountainous regions of Pakistan, it is entirely unclear to what degree the al Qaeda central leadership (if such a thing even exists) exerts formal control over operatives abroad who adhere to al Qaeda’s ideology or take action under al Qaeda’s banner. It is difficult to determine, therefore, whether individuals suspected of potential acts of terrorism in the United States should be considered a domestic or a foreign threat. Can such actors really be said to represent a foreign power in the way that Soviet spies did during the Cold War? If the individual receives money, training, specific orders, or material intelligence from an organization such as al Qaeda, perhaps it is more obvious that the person is then an agent of a foreign power. But what about a person who enters an Internet chat room to discuss philosophy or exchange anti-American rhetoric with people he may or may not know to be terrorists? What if the chat moves into a discussion of bomb making or guerrilla tactics? What level, amount, and kind of advice or contact crosses the threshold to warrant a designation of an agent of a foreign power? And what about the domestic terrorist group that chooses to affiliate itself with the al Qaeda ideology and “brand” but has no formal connection to or contact with the actual organization? Even if it is entirely appropriate that such individuals should indeed be considered a foreign threat, that decision may not be possible to make until after surveillance has already occurred. The determination of what constitutes an “agent of a foreign power” cannot be solely within the purview of the executive branch which also controls the mechanisms of surveillance. If it cannot definitely be said that potential terrorists represent a “foreign” threat, it becomes important that, despite the administration’s claim to the contrary, many legal analysts argue that the NSA program cannot be understood as consistent with the Fourth Amendment, a position that casts additional doubt on the claim that warrantless domestic surveillance could be an inherent executive power. In a letter to Congress, a group of the nation’s most esteemed constitutional law scholars challenged the

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administration’s argument that the NSA program could be seen as consistent with the Constitution. As the letter notes, “the [Supreme] Court has never upheld warrantless wiretapping within the United States, for any purpose . . . [and] has squarely held that individuals have a reasonable expectation of privacy in telephone calls and that probable cause and a warrant are necessary to authorize electronic surveillance of such communications.”61 The authors go on to note that the memo submitted by Attorney General Gonzales “contends that the NSA program can be justified under a line of Fourth Amendment cases permitting searches without warrants and probable cause in order to further ‘special needs’ above and beyond ordinary law enforcement.” The authors admit, as most reasonable observers would, that the threat posed to the United States by al Qaeda constitutes “special needs” that transcend the bounds of normal law enforcement. However, while the claim of “special needs” may enable the government to bypass the normal statutory requirements of law enforcement, it does not free the government to conduct whatever kind of search it deems necessary. “The Court then looks to a variety of factors to assess whether the search is reasonable, including the extent of the intrusion, whether the program is standardized or allows for discretionary targeting, and whether there is a demonstrated need to dispense with the warrant and probable cause requirements.” The authors conclude that: [T]he NSA spying program has none of the safeguards found critical to upholding “special needs” searches in other contexts. It consists not of a minimally intrusive brief stop on a highway or urine test, but of the wiretapping of private telephone and email communications. It is not standardized, but subject to discretionary targeting under a standard and process that remain secret. Those whose privacy is intruded upon have no notice or choice to opt out of the surveillance. And it is neither limited to the environment of a school nor analogous to a brief stop for a few seconds at a highway checkpoint. Finally, and most importantly, the fact that FISA has been used successfully for almost thirty years demonstrates that a warrant and probable cause regime is not impracticable for foreign intelligence surveillance. Accordingly, to extend the “special needs” doctrine to the NSA program, which authorizes unlimited warrantless wiretapping of the most private of conversations without statutory authority,62 judicial review, or probable cause, would be to render that doctrine unrecognizable.63

It would be odd indeed to suggest that the president possessed an inherent power that was not only in violation of the Fourth Amendment but was in violation of judicially accepted exceptions to the Fourth Amendment. The administration’s claim that all powers related to defending the country from foreign attack are inherently the president’s and are not subject

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to congressional regulation does not ring true either. We have already seen that the conduct of hostilities, and even the presence of a formal declaration of war, does not permit the president to do anything he deems necessary for the successful prosecution of the conflict.64 Justice O’Connor’s remark in the Hamdi decision that “a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens” stands as a more recent affirmation of this idea. It cannot be said simply because the president deems domestic surveillance to be an important tool of the war on terrorism that domestic surveillance is an inherent power. Nor can it be said simply because the nation is involved in a military conflict that the president may take any action he considers necessary to achieve victory. As the authors write, “every time the Supreme Court has confronted a statute limiting the Commander in Chief’s authority [to engage the enemy], it has upheld the statute. No precedent holds that the President, when acting as Commander in Chief, is free to disregard an Act of Congress, much less a criminal statute enacted by Congress, that was specifically designed to restrain the President as such.”65 In particular, “in the opinion cited most often by the defenders of the Bush spy program, In re: Sealed Case, the electronic surveillance at issue was based upon both a warrant and probable cause. The ‘precedent’ relied upon by the administration’s defenders is not ‘precedent’ at all.”66 John Yoo makes the claim that surveillance should be considered an inherently executive power because “war’s unpredictability can demand decisive and secret action.” “Legislatures,” he argues, “are too slow and its members too numerous to respond effectively to unforeseen situations.” Thus, he asserts, surveillance, including the domestic warrantless kind conducted by the NSA, should be entirely under the purview of the president.67 There are two implications made here: first, that it would have been too difficult and time-consuming for the Bush administration to go to Congress in an effort to get statutory authorization for its desired surveillance program; and second, that going to Congress would have compromised the classified nature of the program, alerting al Qaeda to the surveillance and undermining the efficacy of the wiretapping.68 However, as Suzanne Spaulding, a former general counsel to both the Senate and House Intelligence Committees and former executive director of the National Terrorism Commission, writes: This is not the first time the intelligence community has needed a change in the law to allow it to undertake sensitive intelligence activities that could not be disclosed. In the past, Congress and the administration have worked together to find a way to accomplish what was needed. It was never considered an option to simply decide that finding a legislative solution was

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too hard and that the executive branch could just ignore the law rather than fix it.69

Royce Lamberth, a federal judge who was the chief of the Foreign Intelligence Surveillance Court from 1995 to 2002, concurs with Spaulding’s assessment, arguing that FISA was sufficiently flexible to accommodate emergencies and to be adapted to function in new circumstances. Lamberth describes how despite being stuck in traffic on September 11 after one of the hijacked planes was crashed into the Pentagon he was able to approve five FISA warrants on his cell phone. He goes on to assert that “in a time of national emergency like [September 11], changes have to be made in procedures” and that “we changed a number of FISA procedures” without breaking its most basic rules and requirements.70 Yoo’s argument is also belied by the eventual outcome of the fight over the NSA program. In January 2007, just over a year after the publication by the New York Times of the article that revealed the existence of the program, the Bush administration gave up the fight to preserve its warrantless wiretapping and agreed to give the Foreign Intelligence Surveillance Court jurisdiction over the NSA’s domestic surveillance. A statement from the Justice Department announcing the compromise stated that the government “had worked out an ‘innovative’ arrangement with the Foreign Intelligence Surveillance Court that provided the ‘necessary speed and agility’ to provide court approval to monitor international communications of people inside the United States without jeopardizing national security.”71 It was not that the administration could not obtain legislative authorization without endangering the country; it was that the administration did not try or did not try hard enough. Once forced by congressional and public outrage to compromise, the administration was able to find a way to conduct the surveillance it desired in a manner consistent with the law. There are many arguments as to why domestic warrantless wiretapping should not be considered an inherent power of the president. But, even if one accepts that such surveillance should be understood as an inherent executive power, that still would not mean that the president was free to violate the terms of an existing congressional statute. Inherent power does not mean exclusive power, nor is an inherent executive power necessarily free from congressional statutory regulation and oversight.72 As the Youngstown decision makes clear, the Constitution “enjoins on its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending on their disjunction or conjunction with those of Congress.”73 Determining how those powers fluctuate was the purpose behind Justice Jackson’s tripartite structure in which the degree to which Congress has

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spoken about a presidential claim of power helps determine the exclusivity of the power itself. As the Youngstown case established, “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb. . . . Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.”74 In other words, a presidential action in contravention of congressional legislation can only be upheld in cases where the power in question clearly and definitively belongs to the president and to the president alone. It seems clear that Congress does have the power to regulate domestic wiretapping. According to the Congressional Research Service, “the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information.”75 Furthermore, “when FISA was enacted, the Justice Department agreed that Congress had power to regulate such conduct, and could require judicial approval of foreign intelligence surveillance. FISA does not prohibit foreign intelligence surveillance, but merely imposed reasonable regulation to protect legitimate privacy rights.”76 Philip Bobbitt reinforces this point, writing that: President Bush’s claims to an inherent power to conduct intelligence operations in time of war are not without merit. There is ample precedent for this, going back to John Adams’s presidency. But the further claim that this power is exclusive—that it cannot be constitutionally regulated by congressional action—seems to fly in the face of many statutes, including the Patriot Act and its provisions for amending FISA, that give the executive greater power to conduct surveillance, provisions requested by the president in the first place.77

If Congress has the power to regulate wiretapping, then even if surveillance is an inherent executive power, it cannot be a plenary power. Furthermore, the use by Gonzales and Eastman of the Curtiss-Wright decision to argue that the president, in his role as “sole organ” of foreign policy, has the right to take actions in the domestic sphere is dubious at best. As chapter 2 argued, while Curtiss-Wright may very well establish the sole right and responsibility of the president over foreign relations, the decision made it quite clear that it was separating the international arena from the domestic. Is the wiretapping of individuals living within the United States, even if they may be collaborating with an international terrorist organization, so clearly an issue of foreign policy that Congress should have no power to control it? As was argued earlier in this chapter, there is sufficient confusion about the nature of international terror networks to create considerable doubt as to how

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we should understand the connections between the terror organization and its cells or affiliates. The Curtiss-Wright decision, as broad and powerful as it may be, should not be applicable to the question of whether domestic warrantless surveillance should be considered a plenary executive power, nor should it be used to give the president unchecked domestic powers. Given the nature of what President Bush was trying to do, it seems both prudent and necessary that, if domestic surveillance is not a plenary executive power, the legislative branch be involved in its regulation. Few things are more fundamental to American civil liberties than the right to be free from unwarranted government surveillance, hence its presence in the Bill of Rights. Rights as basic as this one must be safeguarded by the most representative and deliberative branch of government. The whole purpose of the separation of powers embodied in the U.S. Constitution is to prevent one individual or branch of government from acting alone and from accumulating too much power. This is a particularly salient concern in the war on terrorism, as its nebulous and undefined nature makes it tempting for the executive branch to expand its power in its effort to defend the nation. But “the concern must be that the government not be permitted to militarize the domestic environment, shunting aside civilian institutions owing to the frontless nature of the global war.”78 It may be that in the case of an emergency existing laws would need to be relaxed, altered, or done away with altogether. But such changes must come in deliberation with the legislative branch, not on the unilateral say-so of the president, cloaked in secrecy and protected from public, judicial, and congressional scrutiny and oversight. THE AUMF AS AUTHORIZATION FOR THE NSA SURVEILLANCE PROGRAM That said, is it possible that Congress did give its assent to the NSA’s surveillance program? As described earlier, one of the Bush administration’s most powerful arguments was that the AUMF served as a formal congressional authorization of the secret warrantless wiretapping program. In support of this claim, the administration makes the argument that the expansive language of the AUMF that authorizes the president to use “all necessary and appropriate force” “indicates Congress’s endorsement of the President’s use of his constitutional war powers” and “transforms the struggle against al Qaeda . . . into a situation in which the President’s authority is at its maximum.”79 In other words, the AUMF is, in the eyes of the president, the functional equivalent of a declaration of war. By passing the AUMF, Congress gave President Bush any and all powers that would be considered part of the commander in chief’s war powers.

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We have already seen why it does not make sense to consider warrantless wiretapping as a fundamental incident of war, and therefore why that power should not be considered to be a part of the president’s traditional war powers. But does it make a difference that Congress specifically authorized this conflict with the AUMF? The theory of balanced war powers answers no. The administration argues that by authorizing the conflict, Congress also authorized the president to use any and all necessary tools to combat al Qaeda. But the administration also argues, and the theory of balanced war powers agrees in chapter 3, that the president did not need the AUMF to deploy force and initiate hostilities. We have already seen that there are many ways for Congress to authorize a conflict without doing so explicitly. Does that mean that if the president deploys force and can point to any kind of authorization by Congress the president’s full complement of war powers, including any domestic powers, are activated? Such a claim is unsustainable. No one believes, even if the president has the constitutional authority to use force without explicit permission from Congress, that doing so activates the full complement of the president’s war powers. Such an argument would so grossly tip the balance of war powers to the president as to eviscerate any semblance of separation of powers. It simply makes no sense to argue that whenever the president uses force he is empowered to assume the full set of war powers, including domestic legislative powers. Even a fervent advocate of expanded presidential powers such as John Yoo rejects this argument, writing that the executive branch can only assume such expanded powers “when war is declared” and that “one doubts (which puts the case rather mildly) whether the courts would have allowed the wholesale internment of Panamanian Americans during the 1989 Panama War, or of Yugoslavs during the Kosovo conflict. . . . Only a declaration of war from Congress could trigger and permit such extreme measures reserved only for total war.”80 But Yoo does argue, as does the Bush administration, that the explicit authorization contained in the AUMF constitutes the functional equivalent of a formal declaration of war.81 So, perhaps it is the explicit nature of the AUMF, rather than simply the existence of conflict even if somehow authorized by Congress, that would authorize the president to permit the NSA to conduct wiretappings in violation of the established FISA procedures? But this argument has the unintended consequence of expanding congressional power over presidential war powers to an extent that is neither desirable nor constitutionally sustainable. By equating any and all explicit authorizations for the use of force with the constitutional power to declare war, the domain of Congress’s declare war power is, in essence, expanded to cover almost every aspect of the president’s ability to deploy armed forces and initiate hostilities.

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As the theory of balanced war powers argued in chapter 2, the power to declare war is a rarely used yet powerful tool by which Congress can balance the president by controlling the president’s ability to assume domestic legislative powers in wartime. But if the definition of what counts as a declaration of war is expanded, then so too is the scope of the power to declare war itself. By arguing that the AUMF is a declaration of war, the door is opened for Congress to argue that the power to declare war can be used to regulate every aspect of war, from the president’s power to conduct surveillance to the power to deploy force. And as this outcome is not one that the executive branch would welcome (every president, Democratic and Republican, has rejected as unconstitutional Congress’s attempt to control troop deployment in the War Powers Resolution), it seems that this argument may not be the wisest strategy. Finally, there is an even more practical reason that the Bush administration, and the executive branch more generally, should be wary of embracing the argument that the AUMF stands as a functional equivalent of a formal declaration of war. While it has been argued here that the president does possess the power to deploy force and initiate hostilities without explicit congressional approval, there is no doubt that it is politically beneficial if Congress openly supports the president’s actions. However, if Congress fears that the president will seize on any formal authorization of military hostilities to claim expanded war powers, particularly in the domestic arena, Congress may very well be hesitant to offer any such public approvals, thereby making it more difficult for the president to obtain enhanced legitimacy for the operation, as well as congressional cooperation and public support. If we cannot take the mere fact of congressional authorization of the war on terrorism as permitting the domestic warrantless surveillance program, and if we cannot treat the AUMF as a declaration of war, does the specific language of the AUMF authorize the NSA program? The AUMF declares that “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”82 Does the authorization of the president to use “all necessary and appropriate force” include the ability to conduct surveillance on those suspected of membership in or collaboration with the enemy? By authorizing the president to use force, was Congress merely authorizing President Bush to deploy force abroad, as was done in Afghanistan against the Taliban, or was it approving of a broader, openended, and indefinite campaign, possibly involving the domestic arena,

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and giving the president the power unilaterally to alter and evade existing statutory regulations such as FISA? The Bush administration strongly believes that Congress was doing the latter. In case after case, the administration and its supporters point to the “all necessary and appropriate force” language as evidence that Congress knowingly authorized President Bush to utilize his full complement of war powers in the fight against al Qaeda. In his letter to the chair of the House Judiciary Committee, law professor John Eastman argues that “Congress has authorized the use of force in terms broad enough to permit the President’s actions.”83 Attorney General Gonzales cites that language as well, stating that it supplements the president’s inherent authority and creates a situation where the president is acting with “the express authority of Congress.”84 And John Yoo writes that the “AUMF has no limitation on time or place—only that the President pursue al Qaeda” and that “Congress’s approval of the killing and capture of al Qaeda members must obviously include the tools to locate them in the first place.”85 But this argument falls victim to the same attack that Yoo levels against the broad interpretation of the declare war clause. We have already seen (in chapter 2) Yoo’s argument that the constitutional power to declare war should not be understood to include the power to deploy the troops and initiate hostilities because the Founders would have known how to indicate that intention had they so chosen. That same logic is applicable here. Congress has, in the past, recognized that the nature of a threat to the United States is so great that it requires creating a state of war in which the president is authorized to take expanded powers and has formally declared war in recognition of that need. Presumably, the members of the Congress that voted for (and against) the AUMF in 2001 were aware of the possibility of declaring war, and for some reason or another, chose to pass an AUMF instead. But that implies a conscious choice not to declare war and not to grant the president extraordinary war powers to combat the threat. If Congress wanted to do what Yoo and the Bush administration claim Congress did do, Congress could have done so more explicitly by formally declaring war. This point is especially clear when considering the language used in the two types of authorization. The AUMF authorized the president to use “all necessary and appropriate force” while the declarations of war passed in the 20th century pledged “all the resources of the country” and “all the resources of the government” to the president. There is no question which language is broader, which language is more expansive, and which language can more accurately be read as transferring expanded, extraordinary powers, including the power to take domestic legislative actions, to the president.

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As chapter 2 made clear, the language of a declaration of war is specific and thereby achieves a specific purpose. A declaration of war is necessary when the government perceives that the threat facing the country demands an extraordinary effort to defeat it. When the level of the threat rises sufficiently high, the government may recognize that the normal process of legislation is neither fast enough nor flexible enough to defend the country adequately. In such instances, Congress can use the declaration of war to cede legislative power to the president, as it did in World Wars I and II. In those conflicts, the president was allowed to take domestic actions that would normally have required legislation, such as rationing, internment, and domestic warrantless surveillance. There is little evidence that Congress intended to give expanded domestic power to President Bush. Several congressmen have since claimed exactly the opposite. Senator Tom Daschle, who was Senate majority leader at the time of the September 11 attacks and the passage of the AUMF, wrote in an op-ed in the Washington Post that Congress considered and expressly rejected adding language to the AUMF that would have explicitly given President Bush the domestic powers his administration later claimed were implicitly granted in the AUMF. Daschle writes that during the negotiations on the AUMF, “the subject of warrantless wiretaps of American citizens never came up,” and that “the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.”86 More directly, Daschle claims that the “White House proposed that Congress authorize the use of military force to ‘deter and pre-empt any future acts of terrorism or aggression against the United States,’ ” but that “believing the scope of this language was too broad and ill defined,” Congress settled on the “all necessary and appropriate force” language instead. Then, minutes before the Senate moved to vote on the AUMF, Daschle asserts that “the administration sought to add the words ‘in the United States and’ after ‘appropriate force’ in the agreed upon text,” which would have given the president “broad authority to exercise expansive powers not just overseas—where we all understood he wanted authority to act—but right here in the United States, potentially against American citizens.”87 Daschle refused to add the language, and the AUMF passed in its current form. Yoo challenges Daschle’s account of the AUMF negotiations, writing that “no one in the room claimed [the AUMF] would prohibit military action to stop an al Qaeda attack if one occurred within our borders” and asks “would Senator Daschle say that the AUMF did not allow the Air Force to shoot down, if necessary, the next United flight 93?”88 However, Yoo’s defense of the administration here is little more than a straw man.89 Nothing in Daschle’s argument implies in any way that he is referring to

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the question of whether the president can use force in response to an inprogress attack or invasion of United States, nor is there any implication that Daschle believes that in such cases the president would first have to receive authorization to act from Congress. Rather, Daschle is making the much more reasonable argument (whether or not one agrees with it) that the authorization given by Congress to the president to deploy U.S. troops abroad to punish those responsible for the September 11 attacks did not include an implicit or explicit authorization for the president unilaterally and secretly to evade statutory regulations protecting basic civil liberties. By choosing to pass an AUMF with its narrower language and more limited grant of power, Congress was explicitly choosing to limit the president’s war powers to the traditional incidents of war, which we have seen may include military surveillance but do not include domestic warrantless surveillance. A declaration of war with its broader language and explicit recognition of the existence of a state of war could have been used to give the president extraordinary war powers going beyond those traditionally considered “fundamental incidents” of war, but was not. Just as in the Korean War, when the president’s seizure of striking steel mills that endangered the war effort (in the estimation of President Truman) was not considered a fundamental incident of war and was not allowed, so in the war on terror, while the president may have broad powers to conduct hostilities abroad, his powers in the domestic sphere are still governed by the constitutional separation of powers. If the president believes that he needs to act in the domestic arena, he has two options: He can ask Congress for specific legislation, or, if he believes he needs undefined and nearly unlimited domestic powers, he can ask Congress for a declaration of war. The right to privacy in one’s communications is not only a basic civil liberty, but is also essential for the operation of a free and open democratic society.90 Laws designed to ensure the protection of such an important and basic liberty cannot be ignored, evaded, or altered by a unilateral exercise of executive power. Doing so, even if initially done for noble purposes, opens the door to abuses and misuses of unchecked power. In October 2008, it was revealed that “U.S. intelligence analysts eavesdropped on personal calls between Americans overseas and their families back home and monitored the communications of workers with the Red Cross and other humanitarian organizations.”91 The allegations, made by two military linguists involved in surveillance programs, asserted that the calls being monitored had nothing to do with terrorism, but rather consisted of “recordings of intimate conversations between [American] citizens and their loved ones” which were “passed around out of prurient interest.” One of the linguists claimed that she was encouraged to monitor the conversations of “non-threatening groups like the Red Cross” “just in case.”92 While it

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is unclear whether the surveillance described by the linguists was part of the NSA program, Senator John D. Rockefeller IV, the chair of the Senate Intelligence Committee, launched an investigation to determine the scope of and responsibility for the eavesdropping.93 While a violation such as is being alleged here does not mean that the eavesdropping program is not justified, it does highlight concerns about what happens when there is little oversight and few checks on the exercise of extraordinary powers. This is exactly why the Constitution enshrines the concept of separation of powers in the American government. If the separation of powers is to have any meaning at all in times of crisis the legislative body, in its role as the most representative and deliberative body of government, must continue to be involved in some way so as to prevent the executive branch from aggrandizing itself, from seizing powers normally held by Congress, and from violating basic rights and liberties in an effort to defend the nation. The balanced theory of war powers reinvigorates the declaration of war in a way that both protects civil liberties and allows the president the power and flexibility needed to defend the United States. When the formal declaration of war is understood as the sole means by which Congress can make a blanket transfer of power to the president, Congress can focus its attention on protecting the rights and liberties of the American people. The outcome of the debate over domestic warrantless wiretapping was a political agreement between President Bush and Congress resulting in legislation updating the FISA rules in a manner that was acceptable to both sides, a result that most likely could have been achieved from the beginning. However, the price of the president’s attempt to claim extraordinary domestic legislative powers for himself was an undermining of the public’s faith in the government, public revelation of the surveillance program, wasted time and energy in needless back-and-forth debating, and even dissension within the administration itself.94 Understanding the division of war powers in the way proposed by the balanced theory would have led both sides to the eventual outcome while avoiding the costs of confrontation. In the period following September 11, the existing FISA statute very well may have been inadequate to defend the country against the threat posed by al Qaeda. As judge Richard Posner makes clear, FISA’s rules required that “in order to get a warrant the government must have grounds to believe the ‘U.S. person’ it wishes to monitor is a foreign spy or a terrorist,” which means that “the government can’t get a warrant to find out whether [a person] is a terrorist; it must already have reason to believe [the person] is one.”95 But the question at stake is not, and cannot be, whether the unique nature of and difficulties posed by the war on terrorism made FISA obsolete and thereby necessitated an updating of the surveillance

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laws. The question is how the decision to revise FISA is to be made and who should make it. If the threat from al Qaeda is so great and if the undefined and indefinite nature of the war on terrorism demands it, then it may indeed be necessary to view the domestic home front of the United States as a battleground, or even the front lines. And if such a determination is made, then the president should not only have his full complement of war powers but also the broadened domestic legislative powers that previous presidents in time of war, such as Lincoln, Wilson, and Roosevelt, possessed. But that determination can only be made by Congress through a formal declaration of war that not only declares the existence of a state of war, but also transfers “all the resources of the government” and of the United States to the president. It cannot be made by the president alone.

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Chapter 5

THE DETENTION AND TRIALS OF SUSPECTED TERRORISTS

On June 20, 2008, the United States Court of Appeals for the District of Columbia Circuit issued a decision concerning an individual accused by the Bush administration of involvement with international terror organizations. In a unanimous decision, a three-judge panel of the court found that the administration had not presented evidence sufficient to designate the detainee, Huzaifa Parhat, a member of the Uighur Muslim minority in western China, as an enemy combatant. Parhat, who was arrested in Afghanistan after the American invasion of that country, claimed that he was only in Afghanistan because he and his compatriots were fleeing violence and repression at the hands of the Chinese government. The U.S. government maintained that Parhat and his fellow Uighurs were affiliated with a Uighur resistance organization, which was, in turn, associated with al Qaeda and the Taliban, and that, therefore, Parhat was an “enemy combatant” and subject to indefinite detention according to the traditional laws of war and the Detainee Treatment Act passed by Congress.1 In its opinion, the court ruled that because the evidence presented by the government “did not permit the Tribunal to make the necessary assessment . . . we cannot find that the government’s designation of Parhat as an enemy combatant is supported by a ‘preponderance of the evidence’ and ‘was consistent with the standards and procedures’ established by the Secretary of Defense, as required by the [Detainee Treatment] Act.”2 The court ruled that the government’s claim of evidence amounted to little more than a self-referential claim—for evidence of Parhat’s status, the government pointed to its own assertions of Parhat’s status—and therefore could not

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be sustained.3 Therefore, the appeals court ruled, Parhat was either to be released or given an opportunity to present his case before a military tribunal that satisfied the condition of the ruling. Since Congress passed the Detainee Treatment Act, which governs the procedure by which a suspect can be designated as an enemy combatant and, in turn, can challenge that designation, the decision in Parhat v. Gates is not, in and of itself, a question of war powers in the sense considered in this book. However, the case does serve to make clear, in very stark terms, what is at stake. It is inconceivable that in the absence of congressional authorization or judicial oversight the administration would apply more stringent criteria to the process of determining who is and who is not an enemy combatant. As the cases of Parhat, Hamdi, Hamdan, and Rasul all demonstrate, the issues at stake in the question of the detention and trial of individuals suspected of involvement in international terrorism touch on what very well may be the most fundamental of all civil liberties: the right not to be incarcerated without cause or recourse merely on the say-so of the government. The theoretical questions surrounding the detention and trial of individuals suspected of involvement in international terrorism are, at face value, quite similar to those concerning domestic surveillance considered in the previous chapter. Does the president have the inherent power to detain indefinitely individuals seized in the war on terrorism? Does that power give the president the right to supersede existing domestic and international laws? To what degree should Congress be involved in decisions involving civil liberties and basic freedoms? One important difference, however, is that the Supreme Court has heard several cases concerning detention and trial, while the only legal decision handed down that dealt with wiretapping was dismissed on procedural grounds, telling us nothing about the final legal status of the issues. The decisions in the three cases concerning detention and trial in the war on terrorism that will be considered in this chapter—Hamdi v. Rumsfeld, Rasul v. Bush, and Hamdan v. Rumsfeld—go a long way toward revealing how the Supreme Court understands the proper balance of war powers between the president and Congress. The Supreme Court’s implicit understanding of war powers reflects the ideas of the balanced theory of war powers. As this chapter will make clear, the Court’s decisions are predicted by the logic of the balanced theory and fit perfectly into the policy recommendations that flow from it. In short (the decisions will be considered in greater detail below), the Supreme Court affirmed that the president is correct to view the struggle against international terrorism through the lens of military conflict and that the tools of war are, to some degree, the appropriate tools with which to defend the nation. The Court also determined that the president’s war powers are, despite the existence of ongoing hostilities

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and the authorization of those hostilities by Congress in the AUMF of 2001, limited by both the Constitution and existing legislation. The Court’s rulings have given the executive branch the broad flexibility that the president claims is necessary to combat international terrorism. But the Court has also insisted on basic protections of rights and civil liberties and has, in essence, encouraged the president to work with Congress to determine the most appropriate policies. In the words of one scholar, “in neither Rasul nor Hamdan did the Court act on constitutional grounds, leaving Congress free in both instances to change the laws the Court interpreted—which the legislature promptly did. . . . [I]n both decisions, the administration suffered dramatic setbacks that amounted in practical terms merely to a requirement to seek congressional permission for what it wanted to do.”4 As we have seen, the balanced theory of war powers argues that the nature of the war on terrorism is sufficiently different from that of traditional conflicts as to throw into question the appropriate composition of presidential war powers. Furthermore, the balanced theory asserts that the AUMF of 2001 does not accomplish the same purposes as a formal declaration of war, and therefore Congress has an important role to play in checking the expansion of presidential power over the domestic arena and protecting the legal rights of individuals under the authority of the United States. Thus, the balanced theory concludes that the president’s war powers in the war on terrorism under the AUMF do not allow him to circumvent either the Constitution or existing legislation when determining the rules and processes by which detainees will be held and eventually tried. If the rules are, in the determination of the president, inadequate for the task at hand, the president can ask Congress to change the laws to suit the unique requirements of the war on terrorism. If he believes that the legislative process is too slow and clumsy, the president can ask for a declaration of war which would, as has been argued in previous chapters, broadly transfer legislative powers from the legislative branch to the executive branch. As will be demonstrated below, the Supreme Court decisions echo all of these points. First, however, we must consider the histories of the cases before the Supreme Court and the decisions that have been handed down. CASES AND DECISIONS CONCERNING THE TRIALS AND DETENTION OF SUSPECTED TERRORISTS Not long after the attacks of September 11, 2001, the Bush administration found itself facing the problem of what to do with individuals seized in Afghanistan (or in any one of a dozen other countries as part of the war on terrorism) and suspected of involvement with those responsible for September 11, such as the Taliban or al Qaeda. In January 2002, the first prisoners

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were transported to U.S. facilities at Guantánamo Bay, Cuba, which the administration declared to be beyond the reach of U.S. sovereignty and thus not subject to oversight by the civilian judicial system. Furthermore, the detainees were deemed to be “enemy combatants” and not due the protections afforded to traditional prisoners of war.5 Shortly thereafter, lawyers for the detainees began filing habeas corpus petitions in federal courts; the petitions were dismissed by lower federal courts in the summer of 2003 on the grounds that the courts lacked jurisdiction over Guantánamo Bay because the lease allowing the U.S. military to use the territory stipulated that “ultimate sovereignty” over the land remained with Cuba.6 However, in November 2003, the Supreme Court agreed to hear, in the face of angry protests from the Bush administration, the detainees’ appeal in Rasul v. Bush. At the same time, the Court agreed to hear the case of an American citizen, Yasir Hamdi, who had been detained in Afghanistan and was challenging his detention and classification as an enemy combatant.7 In June 2004, the Supreme Court announced its decisions in Rasul v. Bush and Hamdi v. Rumsfeld.8 In the former, the Court held that the detention facility at Guantánamo Bay is functionally part of the United States and indeed subject to U.S. jurisdiction. Therefore, U.S. federal courts have the right to hear habeas corpus petitions emanating from those detained there. In the Hamdi decision, the Court ruled that while being an American citizen did not protect a detainee from indefinite detention under the rules of war, it did mean that a detained U.S. citizen was due a hearing to contest his status as an enemy combatant. In response to the Rasul decision, the Department of Defense, which was responsible for the Guantánamo Bay camp and its “residents,” created Combatant Status Review Tribunals (CSRTs) made of military officials and before which every detainee would be given an opportunity to present his story and contest the charges leveled against him by the American government. Meanwhile, President Bush had, in 2002, ordered the creation of military commissions to try individuals deemed to have violated the laws of war.9 In November 2005, the Supreme Court agreed to hear an appeal from one of the first enemy combatants scheduled to face trial by military commission, a Yemeni citizen named Salim Ahmed Hamdan accused by the United States of being a member of al Qaeda. Three days later, an amendment was added to the Detainee Treatment Act (DTA) which stripped the federal courts of jurisdiction over cases from Guantánamo. The DTA was quickly passed by both Houses of Congress and was signed into law by President Bush in December 2005. In June 2006, while not ruling on whether the DTA could strip the federal courts of habeas jurisdiction over Guantánamo, the Supreme Court did find that it did not apply to cases pending at the time of the DTA’s

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passage, which included that of Hamdan. The Court then ruled that the military commissions set up by the Pentagon were invalid, as they violated both existing statutes controlling the use of military commissions and the obligations of the United States under Common Article 3 of the Geneva Conventions. Three months later, Congress responded to this ruling by passing the Military Commissions Act (MCA) which not only authorized the military commissions desired by the Bush administration, but also explicitly stripped federal courts of jurisdiction from all pending as well as future cases. In February 2007, the DC Court of Appeals upheld the jurisdictionstripping provisions of the MCA, and in April 2007 the Supreme Court, in a divided decision, declined to hear an appeal from Guantánamo. However, the Court did indicate that it would be willing to reconsider its decision once the detainee in question had exhausted the tribunal process in place at Guantánamo (the CSRTs). In June 2007, the Court reversed itself and agreed to hear the appeal after the lawyers for the detainees presented a statement from a presiding officer on the CSRT stating that the process “had failed to give the detainees even rudimentary protections.”10 One year later, the Court issued its ruling in Boumediene v. Bush that the MCA was an unconstitutional suspension of habeas corpus and that the procedures it established were inadequate. These four cases—Rasul v. Bush, Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush—make up the bulk of the legal debate concerning the detention and trial of individuals suspected of involvement with international terrorism. Interestingly, many of the decisions were trumpeted by both supporters and opponents of the Bush administration’s policies as successes. For critics of the detention and trial policies, Guantánamo Bay represented a “national disgrace” that utilized “kangaroo courts that give the inmates no chance to defend themselves.”11 Jordan Paust, a law professor at the University of Houston, warned that the administration’s policies at Guantánamo risked the “destruction of American values” and that “lawless overreaction by those with Executive power is a threat to human dignity, human rights, and [American] democracy that must be opposed by the judiciary and the American people.”12 From this perspective, the decisions handed down by the Supreme Court were a vital reaffirmation of the nation’s commitment to human rights and civil liberties and a necessary rebuke of the Bush administration’s use of unilateral and unchecked executive power. Thus, the “stunning decision” in Hamdan is a “ringing endorsement” of the principle of using “separation of powers on behalf of liberty.”13 Of the Boumediene decision, the Washington Post wrote that the ruling is “welcome victory for due process and the rule of law” while the Philadelphia Inquirer asserted that “the court’s historic

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ruling upholding the right of hundreds of Guantánamo Bay, Cuba, detainees to challenge in the federal courts their years-long captivity redresses an awful injustice committed in the nation’s name.”14 To those on the other side of these issues, the Supreme Court’s rulings dangerously undermine the president’s ability to defend the nation from the threat of international terrorism. In response to the Boumediene decision, the Wall Street Journal opined “with confident horror that more Americans are likely to die as a result.”15 John Yoo referred to the Hamdan decision as a “power grab” that “ignores the basic workings of our separation of powers and will hamper the ability of future presidents to respond to emergencies with the forcefulness and vision of a Lincoln or an FDR.”16 Interestingly, the decisions in Hamdi and Rasul were argued by some to be victories for the Bush administration. David Rivkin and Lee Casey make this point, claiming that: The Court accepted the following critical propositions: that the United States is engaged in a legally cognizable armed conflict with al Qaeda and the Taliban, to which the laws of war apply; that “enemy combatants” captured in the context of that conflict can be held “indefinitely” without criminal trial while that conflict continues; that American citizens (at least those captured overseas) can be classified and detained as enemy combatants, confirming the authority of the Court’s 1942 decision in Ex Parte Quirin (the “Nazi saboteur” case); and that the role of the courts in reviewing such designations is limited. All these points had been disputed by one or more of the detainees’ lawyers, and all are now settled in the government’s favor.17

Viewing these cases through the prism of the balanced theory of war powers yields, not surprisingly, a more balanced view of the decisions and their impact on the administration’s conduct of the war on terrorism. In this light, the decisions of the justices can be seen as fitting into and bolstering—although most likely unconsciously—the understanding of war powers advanced in chapter 2. In striking down most of the administration’s policies and actions on legal, but not constitutional, grounds, and by essentially encouraging the president to involve Congress in policy making decisions, the Court buttressed the argument that the mere existence of hostilities is insufficient to justify broad expansions of presidential power without the express permission of Congress. Not in Rasul, Hamdi, nor Hamdan did the Court determine that the president could not act as he did; rather, the Court said that the executive branch could not do so in contravention to existing laws. The Court’s reliance on the laws of war and the limited nature of the AUMF—specifically, that the AUMF did not serve as either the required express permission of Congress nor as the

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broad statutory authority authorizing the president to alter or ignore existing laws—reinforces the role of Congress in determining how much power the president should have at his disposal to defend the country. Ultimately, we would only be able to determine definitively whether the Court understands war powers in the same way as does the balanced theory in a conflict that was being fought under the aegis of a formal declaration of war. If a formal declaration of war were passed, the balanced theory of war powers predicts that the Court would allow most, if not all, of the disputed actions by the president, as the declaration would serve as a broad transfer of statutory power to the president. In that situation, only actions that were truly unconstitutional would be disallowed; actions deemed to be in contravention of existing legal authorities would be permitted on the grounds that Congress authorized the president to use “all the resources of the country” and of the government to defend the nation. However, it does not seem at all likely that a declaration of war will be passed any time in the near, or even in the not-so-near, future. Thus, we can only hypothesize and conjecture about how the Court would have ruled in these cases in the presence of a declaration of war. But first we shall examine the rulings themselves to understand how their logics are predicted and compatible with the balanced theory of war powers. BALANCING THE PRESIDENT, CONGRESS, AND THE COURTS In approaching the cases collectively, the decisions appear to break with comparable decisions handed down in past, but similar, circumstances. Seth Waxman, former solicitor general of the United States, argues that in the past the Supreme Court, when facing questions of balancing national security against civil liberties, “followed a disappointing cycle of giving excessive weight to national security concerns while a military conflict is active, correcting only partially and regretfully for the damage to individual liberties once security has been restored.”18 However, the decisions in Rasul, Hamdi, and Hamdan do not reflect that pattern; instead, the Court chose not to defer to the judgment of the executive branch about measures necessary to protect the country. What, Waxman asks, can explain the breaking of the cycle? One explanation offered by Waxman is that the nature of the war on terrorism is sufficiently different from the conflicts of the past that the cycle is inapplicable, an argument that resonates with the claims of the balanced theory of war powers. Waxman points to the experience of Israel in its own struggles against terrorism, noting that “in contrast to the American experience of episodic exposure to national security threats, Israel has

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faced nearly continuous threats for as long as it has existed. Unlike their American counterparts, Israeli judges have experienced the need to act in a context of a crisis seemingly without end. And by and large their developed jurisprudence is substantially more rights-protective than are U.S. wartime decisions.”19 Now, however, the United States faces a “continuous threat” that poses a “crisis seemingly without end” in the war on terrorism. Thus, Waxman concludes, the Court very well may have decided that the unique nature of the war on terrorism demands that the Court abandon its traditional deference to the executive branch and national security. Such a recognition fits squarely with the argument of the balanced theory of war powers that the domestic aspects of the war on terror challenge the conventional understandings of the proper distribution of war powers and call for instead a new and more balanced framework. The Hamdi decision certainly seems to reflect this logic. The Court ruled that the president’s war powers had been activated by the AUMF, thereby authorizing President Bush to order the indefinite detention of an American citizen determined to have taken up arms against the United States. However, Justice O’Connor’s opinion predicated that decision on the fact that the war against the Taliban closely resembled the wars of the past that had contributed to the development of the laws of war even though the AUMF did not explicitly mention the power of detention. The opinion warned that the war against al Qaeda, by contrast, does not look so typical. Instead, the struggle against international terrorist organizations is an “unconventional war” that has no discernable end and that even the government concedes is “unlikely to end with a formal cease-fire agreement.”20 Thus, while the president’s traditional war powers of detention may apply vis-à-vis the Taliban, they are not likely to apply in the context of the conflict against al Qaeda or other nonstate actors. Indeed, as we shall soon see, the findings in the cases of Rasul and Hamdan support this claim. The balanced theory of war powers agrees with Justice O’Connor’s assessment, arguing that because the war on terror does not look like a traditional conflict—particularly due to its domestic component—and has not been formally declared by Congress to constitute a state of war in the legal sense, the president is limited to his traditional war powers but is not granted the extraordinary legislative powers that would allow him to change or disregard existing legislative processes concerning the detention and trial of enemy combatants. For John Yoo, it is exactly the domestic nature of the war on terror that demands the president be given broad domestic legislative powers. Indeed, Yoo argues that the domestic aspects of the war on terror have led the Supreme Court to exactly the wrong decisions. According to Yoo: It is this virtually unprecedented domestic dimension to the conflict that has led some to misunderstand the fundamental nature of the conflict with

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al Qaeda. They argue that terrorism is a tactic, not an enemy, and that this implies that the war on terrorism is a problem for the criminal law, as it was before September 11, 2001. The war on terrorism is no different conceptually from the war on drugs, the war on poverty, or the war on crime. These “wars” also have their own nonstate actors, such as drug cartels or organized crime groups. However, I believe that September 11 is different in kind rather than in degree. Perhaps the confusion arises from the political rhetoric of the “war on terrorism” and the actual conflict, which is between the United States and the al Qaeda terrorist organization and its affiliates. The United States is not at war with every group in the world that uses terrorist tactics. Furthermore, al Qaeda is different from a drug cartel or organized crime groups, and hence its defeat is more a matter for war than for crime.21

The misperception Yoo identifies has, in his opinion, led the Court to interpose its judgment into decisions about national security that are best made by the executive branch.22 Interestingly, in all of Yoo’s writings about the war on terrorism and the decisions of the Supreme Court, he never addresses the caveat put forth by Justice O’Connor in her Hamdi decision. He repeatedly asserts that Congress has authorized the war on terror through the AUMF and thereby activated all of the president’s war powers. But Yoo never considers that the war on terror is not a traditional war nor asks why traditional understandings of war powers would be applicable in a nontraditional conflict. As argued earlier, a policy is of little use if it does not square with legal findings. The Court clearly believes that the unique nature of the war on terror is an important factor in determining the proper scope of executive war powers. Benjamin Wittes reinforces this point, arguing that “enhanced presidential powers during wartime are defensible conceptually in large measure because they are temporary; they last only as long as the crisis. Because of the indefinite nature of the long war on terror, allowing the president to exercise for its duration the traditional powers his office accrues during wartime involves permitting those powers to attach perhaps permanently.”23 The problem is not simply temporal. Justice O’Connor’s caveat centered not only on the war on terror’s indefinite nature but also on its nontraditional conduct. The war on terror not only has a large domestic component, but as Wittes also notes: As the war on terror progressed, it became clear that a lot of its major operations were not, in fact, military in nature. . . . [M]uch of the international conflict has taken place not in battlefield combat in Iraq or Afghanistan but through the operation of foreign law enforcement in Europe and elsewhere. Indeed, for all its insistence on war as the appropriate model for the conflict

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with al Qaeda, the Bush administration has not been consistent in practice at all. For all of these reasons, the longer the conflict has gone on, the less apt the pure war model has become.24

The unique nature of the war on terror makes it essential to understand properly how war powers are best allocated between the president and Congress. As the balanced theory of war powers argues, the president’s war powers cannot be understood to give extraordinary domestic powers without explicit congressional acquiescence. It may be the case that existing laws are no longer useful for handling a particular conflict, but that decision cannot be made by the executive branch alone. The power to affect the legal status of domestic individuals rests, according to the separation of powers entrenched in the Constitution, with Congress and only Congress can authorize the president to assume that power. This understanding is present in the Supreme Court’s decisions on the enemy combatants, particular in Rasul and Hamdan. In Rasul, for example, the administration and its defenders rested their argument for why the detainees in Guantánamo Bay should not have access to habeas rights on the World War II-era decision in Johnson v. Eisentrager.25 In Eisentrager, 21 German nationals being held in U.S. military prison in Germany after the end of the war filed petitions of habeas corpus contesting their detention. The detainees had been charged with violating the laws of war by continuing military activities against the United States after the surrender of Germany, were tried in China by a U.S. military commission, and were all found guilty. The convicted men filed habeas petitions, challenging their trial by military commission in the absence of an ongoing conflict. In a 6–3 decision, the Court ruled that U.S. courts had no jurisdiction to hear the habeas petition. The opinion, written by Justice Robert Jackson, noted that “in extending constitutional provisions beyond the citizenry, the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act.” Ultimately, the decision was predicated on the fact that “the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign.” Based on that finding, extending the right of habeas corpus to prisoners of war such as the Eisentrager defendants would “hamper the war effort and bring aid and comfort to the enemy.”26 An opinion concerning the rights of detainees being held by the United States outside of the sovereign territory of the U.S. would seem to be a relevant precedent for the Rasul case. Indeed, John Yoo points to Eisentrager

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as not only a controlling precedent for Rasul, but the correct policy outcome as well. Yoo cites the concern expressed in Eisentrager that extending the writ of habeas corpus to the detainees would have made the writ “equally available to enemies during active hostilities as in the present twilight between war and peace” which would severely hamper the war effort.27 This logic should have been applied in the Rasul decision, according to Yoo. The Court should have determined that since Guantánamo Bay is not under the sovereign control of the United States the individuals detained there should not enjoy the full protections of the United States and in particular should not have access to the writ of habeas corpus. In Yoo’s opinion, the Rasul decision “essentially overruled Eisentrager” and “unwisely threatens to inject the federal courts into the micromanagement of the military.”28 But Yoo again, as we saw in chapter 4, conflates the passage of the AUMF with a formal declaration of war and misses the crucial legal distinctions that flow from the different kind of military authorizations. If the AUMF accomplished the same legal transformations and contained the same grants of power as does a formal declaration of war, there would be more ground on which to support the actions of the Bush administration. Indeed, the balanced theory of war powers argues that if a declaration of war had been in place, President Bush would have been authorized by Congress, and thereby allowed by the Supreme Court, to act in contravention to existing statutory authorizations in establishing military commissions or determining the jurisdiction for habeas corpus petitions. However, since an AUMF is not a declaration of war and merely authorizes the use of force, not the assumption of broad legislative powers by the president, existing laws must be followed and the legal status of individuals under U.S. jurisdiction remains unchanged. Defenders of the administration’s policies, however, tend to overlook this important distinction. For example, Yoo refers to language from the Eisentrager decision warning that allowing the German nationals held in China to have access to habeas corpus would make the writ “equally available to enemies during active hostilities” and frequently refers to the president’s need for broad powers to deal with “the enemy.”29 The administration, in its arguments before the Supreme Court in Rasul, made much the same claim, noting that the determination of who should be considered an enemy is a decision for the president acting in his role as commander in chief.30 But under an AUMF the question of who can and should be considered an enemy is much less clear than it would be under a declaration of war. As we saw in chapter 2 when considering the Prize Cases, when a state of war in the legal sense is formally declared by Congress it has the effect of making all the citizens of the warring nations enemies of each other.

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Bas v. Tingy reaffirmed this consequence of a declaration of war, asserting that in a perfect, or formally declared, war, “one whole nation is at war with another whole nation; and all the members of the nation declaring war are authorized to commit hostilities against all the members of the other, in every place, and under every circumstance.”31 In the absence of a formal declaration of war and thus the existence of a legal state of war, while there may be hostilities constituting an imperfect war and there are certainly enemies, it cannot be assumed that an individual is an enemy simply because he or she is a citizen of one of the warring states. What this means is that it cannot be determined prima facie that a detained individual from Iraq, Afghanistan, Yemen, Saudi Arabia, or any other country in which al Qaeda operates is an enemy combatant. In World War II, every citizen of Germany, Italy, or Japan could be considered an enemy without any further deliberation. But that was due to the declaration of war that formally recognized the existence of a legal state of war and pledged all the resources of the government and nation to the president. The AUMF neither acknowledges the existence of a legal state of war and its attendant powers, rights, and responsibilities, nor gives the president “all the resources of the country.” Yoo acknowledges this problem to some degree, arguing that while “in previous wars, such as World War II, the enemy was defined by citizenship,” “al Qaeda is stateless” and “not defined by national identity.”32 But where Yoo thinks the resolution of this ambiguity should lie with the president, the Supreme Court’s decisions make it clear that under the AUMF the president cannot be the sole arbiter of an individual’s status as an “enemy.” Some kind of mechanism other than the mere say-so of the president is needed in order to detain an individual as an enemy combatant. The Court acknowledged this in both the Rasul and Hamdi decisions. In his majority opinion in Rasul, Justice John Paul Stevens argued that the detainees in question differed from those in Eisentrager in several important ways, the first of which is that “they are not nationals of countries at war with the United States.”33 This distinction means that there is inherently more uncertainty about the status of the Guantánamo detainees than there was about those in Eisentrager. Furthermore, the Eisentrager detainees were tried and found guilty before a regularly constituted military tribunal. The Rasul detainees “have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing.”34 In ordering that Rasul and his fellow petitioners be given access to U.S. courts to pursue habeas corpus actions, the Supreme Court acknowledged that the legal status of detainees is different under an AUMF than it is under a declaration of war, and that that difference limits in a fundamental way the ability of the executive branch to pursue desired policies.

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The decision in Hamdi builds on the logic of the Court’s opinion in Rasul, further reinforcing the balanced theory of war powers. While the Hamdi decision did ultimately affirm the administration’s right to hold a detainee indefinitely and that the general application of the “war” paradigm was the correct one, it also contained many caveats that prevent Hamdi from being judged as a complete victory for the administration. As has been mentioned several times already, Justice O’Connor’s plurality opinion in Hamdi made it clear that while Hamdi’s alleged service in the armed forces of a governmental entity—the Taliban—made him eligible for indefinite detention, a standard application of the rules of war, those rules could not be understood to be generally applicable in the broader war on terrorism. And, even though Hamdi was eligible for indefinite detention, the Court ruled that, as a U.S. citizen, Hamdi “must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision maker.”35 Taking into account the decisions in Rasul and Hamdi, the Supreme Court has extended the writ of habeas corpus to detained individuals suspected of involvement in international terrorism, U.S. citizens and enemy aliens alike. These decisions reject the traditional war paradigm advanced by the Bush administration and its supporters. But when viewed through the prism of the balanced theory of war powers, the rulings are not particularly surprising. The balanced theory puts great importance on the declaration of war, which not only effectively transfers broad legislative powers from the president to Congress, but also alters the legal status of individuals by, for example, defining the citizens of a country as enemies. The war on terror, however, is not being fought under a declaration of war, but an AUMF, the narrow language of which cannot be read as anything more than an assent by Congress to the use of force by President Bush. Thus, the U.S. government is not free to assume that anyone seized on suspicion of involvement with international terrorist organizations is automatically an enemy. The Court’s rulings also buttressed the importance of the existing legal environment in which the conflict was taking place. The Court in Rasul did not declare that what the president was trying to do was inherently unconstitutional; the Court only ruled that “under then-current statutory authorities, it had the power to decide habeas corpus cases brought by detainees at the base.” In fact, “nothing about the decision . . . precluded Congress from changing those authorities—narrowing the scope of the habeas statute to clarify that the administration had properly assumed in the first instance that no such jurisdiction existed.”36 If the power to declare war is primarily understood to control legislative authority and legal status, as the balanced theory of war powers argues that it should be, then it is right

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and proper that decisions concerning the classification of individuals for the purpose of detaining them indefinitely as enemy combatants should rest to some degree with the legislative branch. If the president wishes to change the existing statutory authorizations, he can either ask Congress to pass new laws—as Congress did by passing the Detainee Treatment Act in response to the Rasul decision—or he can ask for a declaration of war. Without one or the other, the president may not lay claim to expanded legislative powers, alter or ignore existing laws, or take actions that violate the constitutionally-mandated separation of powers. The decision in Hamdan further reinforces the logic of the balanced theory. Rather than dealing with a detainee’s rights to habeas corpus, Hamdan centered around the military commissions created by President Bush in November 2001. Declaring that it was not practical for trials of suspected terrorists to conform to the rules, practices, and procedures of regular criminal trials, President Bush ordered the commissions to admit evidence that would have “probative value to a reasonable person,” even if the evidence would not be admissible in a civilian court because it was hearsay or had been coerced from a witness or even from the defendant.37 Additionally, President Bush directed the secretary of defense to develop rules for protecting classified information, including the exclusion of the defendant from the courtroom when classified evidence was being presented. These rules made it possible for a defendant to be convicted without seeing the evidence being used against him.38 Salim Ahmed Hamdan was one of the first Guantánamo Bay detainees charged under the military commissions. Hamdan, alleged to be a former chauffeur and bodyguard to Osama bin Laden, was captured in Afghanistan in late 2001 and was transferred to Guantánamo in June 2003. The following month, President Bush declared Hamdan eligible for trial by military commission; the following year, Hamdan was formally charged with conspiring to attack and murder civilians, destroy civilian property, and engage in acts of terrorism. Hamdan then filed a petition for a writ of habeas corpus, asserting that his impending trial by military commission would violate both existing U.S. law under the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. The argument made by the government in support of its use of military commissions was much the same as other arguments we have already considered. First, the government asserted that the AUMF had activated the war powers of the president, and that as the “trial and punishment of enemy combatants” is a fundamental incident of war, “it follows that in authorizing the President ‘to use all necessary and appropriate force’ against al Qaeda, the AUMF authorized the use of military commissions against enemy combatants.”39 Second, the administration claimed that “the

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President’s war power under Article II, Section 2 of the Constitution includes the inherent authority to create military commissions even in the absence of any statutory authorization, because that authority is a necessary and long-standing component of his war powers.”40 As in Rasul and Hamdi, the Supreme Court rejected the administration’s argument, ruling in a 5–3 decision (Chief Justice Roberts had been involved in the case while on the D.C. Circuit Court of Appeals, and thus recused himself from the case when it reached the Supreme Court) that the military commissions established by President Bush were illegal.41 As with the previous cases, the Court again did not rule that the actions of the president were unconstitutional. Instead, the Court determined that Congress had, in Article 21 of the UCMJ pursuant to its constitutional power to “make rules concerning captures of Land and War,” limited the president’s authority to convene military commissions, and the commissions established in November 2001 surpassed that authority.42 The Court noted that “there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ.”43 Again, we see the Court putting great emphasis on the fact that the AUMF did not transform the legal status of the nation, alter existing laws, or give the president extraordinary powers to do so himself. The president does not assume his broadest and most expansive war powers merely with the existence of conflict, even when that conflict has been recognized and the president has been authorized by Congress to employ the armed forces in defense of the nation. In the absence of new statutory authorizations, the president’s war powers are limited to the fundamental incidents of war as understood by the traditional laws of war and as circumscribed by prior congressional legislation. Thus, according to the Court, “together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the ‘Constitution and laws,’ including the law of war.”44 The Court then turned to the question of whether the military commissions established by President Bush could be justified under the “Constitution and laws, including the law of war.” The Court focused on Article 36 of the UCMJ, which prescribed that the rules of military commissions must conform to “the principles of law and the rules of evidence generally recognized in the trial of criminal cases,” but that the president could change those rules if he deemed them not “practicable.”45 However, any changes made by the president “may not be contrary to or inconsistent with” any other stipulations contained in the UCMJ. Additionally, subsection (b) of Article 36 states that “all rules and regulations made under this article shall be uniform insofar as practicable.” This last part of Article 36

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left several matters unclear: “Did it mean that the procedures of military commissions had to be ‘uniform’ with all the rules that the UCMJ mandated for courts-martial or with only the nine provisions of the UCMJ that referred specifically to military commissions? . . . Also, Article 36 was unclear about who assessed the requirement in (b) that all rules and regulations of courts-martial and military commissions be uniform ‘insofar as practicable.’ ”46 The ambiguities in Article 36 seem to give a fair amount of latitude to the Court to interpret the law in accordance with its understanding of war powers. If the Court believed that the president possesses broad and expansive legislative powers to defend the country in time of war, it could have easily interpreted Article 36 to allow the president to determine on his own when it would not be practicable to use the rules of civilian courts in the military commissions. Instead, the Court ruled in a manner entirely consistent with the balanced theory of war powers, interpreting the president’s power over legal issues to be limited by existing laws despite Congress’s authorization of the conflict via the AUMF. Rather than deferring to the president’s determination of when it would be “practicable” to use existing rules, the Court found that “the rules set forth in the Manual for CourtsMartial must apply to military commissions unless impracticable” and that “nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case.”47 Despite the administration’s assertions that the danger posed to the nation by international terrorism creates the impracticability of applying the standard court-martial rules, the Court ruled that “without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.”48 It is clear that the Court’s decision was predicated on an understanding of war powers in which neither the existence of conflict nor an authorization for the use of force from Congress is sufficient to give the president broad and expanded legislative powers. And yet, the Court has also made it clear that the actions of the president could be, given the proper statutory authorization, legal. A plurality of the Court hammered this point home, arguing that while “Congress has denied the President the legislative authority to create military commissions of the kind at issue here, [n]othing prevents the President from returning to Congress to seek the authority he believes necessary.”49 Justice Breyer’s opinion further supports the argument of the balanced theory by stating that when “no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so.”50

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In all of these recent decisions, the Supreme Court ultimately gave the president as much flexibility to fight the war on terrorism as he deems necessary while also reaffirming the need for consultation, the limits of executive power, and the basic sanctity of the constitutionally mandated separation of powers. While the rulings in Rasul, Hamdi, and Hamdan cannot be read as unqualified victories for the Bush administration, “closer examination reveals that [the Court] had affirmed the administration’s fundamental legal approach to the war on terrorism and left it with sufficient flexibility to effectively prevail in the future.”51 As another scholar writes of the Hamdi decision, “in declining to outline precisely the contours of due process for American citizens held as enemy combatants, the plurality also reserved flexibility for the executive branch. Americans, for example, may yet be tried by military tribunals.”52 In none of these cases were the policies of President Bush struck down as fundamentally flawed. The administration is free to determine which laws are useful in the war on terrorism and which are outdated and obsolete. It is free to hold detainees indefinitely. It is free to determine what rules should be used to try detainees. But the executive branch is not free to do any of these things by itself. The Supreme Court quite clearly and firmly ruled that the president does not have the power to take actions that alter existing laws without the permission of Congress and that such consultation is a vital element in protecting individual rights and liberties and the balance of power between the president and Congress. The mistake of President Bush was not in the selection of policies, but in the assertion of unilateral executive power and ignoring Congress. The lack of consultation forced the Supreme Court to step in and redress the imbalance that had emerged, doing in essence the job that Congress should have been doing but was not. The policies ultimately adopted by the president failed to provide basic levels of protection; better processes at the outset might have produced policy outcomes more favorable to the administration. As Patricia Wald surmises: If military review panels, which were already provided for in U.S. Army regulations implementing the Geneva Conventions, had been set up, as they had been in the Gulf and Vietnam Wars to hear prisoners’ objections to their status as enemy combatants on the grounds that they were, in fact, innocent bystanders and were not engaged in combat alongside our enemies; and if the executive had announced a system of periodic reviews to determine whether prisoners could be safely released to their home countries (both of which procedures have been put in effect since the decision), there is at least a good chance the Court would not have waded in so far or chastised the executive so harshly. We can certainly speculate that had even those limited processes been in place, the Court might have said that an initial military hearing and periodic review procedures were enough for foreign-born

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prisoners captured on or near the battlefield, no matter where they were held, and that a full-press U.S. court habeas proceeding was not necessary, nor was there any precedent for its extension to this group.53

One could easily add to Wald’s hypotheses that if President Bush had gone before Congress to get legislative sanction for the legal aspects of the war on terrorism it would be more likely (although not guaranteed, as the decision in Boumediene makes clear54) that the policies implemented would have been more likely to withstand judicial scrutiny. Unfortunately, neither Congress nor the president has been particularly interested in collaborating on the design of effective and sound policies since the onset of the war on terrorism. For its part, “Congress has done very nearly the opposite of countering the executive’s rather considerable ambitions. It has run from its own powers on questions on which its assertion of rightful authority would be helpful, and it has sloughed off the difficult choices on to the two branches of government less capable than itself of designing new systems for novel problems.”55 Instead of pushing the executive branch to bring its policies before the national legislature, Congress preferred instead to allow the president to craft legal policies unilaterally concerning the detention and trial of suspected terrorists while wasting its time, as demonstrated in chapter 3, fighting with President Bush over the question of troop deployments in Iraq. If Congress has been unwilling to force the issue, the executive branch has also demonstrated little interest in bringing in the legislative branch for consultation. Several members of the Bush administration, including vice president Dick Cheney and his legal counsel David Addington, were heavily involved in the creation of the legal superstructure of the war on terrorism and were operating under a theory of presidential power that did not countenance consultation with Congress. As Jack Goldsmith put it, Cheney and Addington: Viewed power as the absence of constraint. These men believed that the President would be best equipped to identify and defeat the uncertain, shifting, and lethal new enemy by eliminating all hurdles to the exercise of his power. They had no sense of trading consent for power. It seemed never to occur to them that it might be possible to increase the President’s strength and effectiveness by accepting small limits on his prerogatives in order to secure more significant support from Congress, the courts, or allies. They believed cooperation and compromise signaled weakness and emboldened the enemies of America and the executive branch. When it came to terrorism, they viewed every encounter outside the innermost core of most trusted advisors as a zero-sum game that if they didn’t win they would necessarily lose.56

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The confluence of these attitudes produced a situation in which the presidency sought to expand its power to combat international terrorism as it deemed necessary while Congress essentially stood back and watched. This then “left the judiciary to seek the ‘right answer’ by groping its way between a few Civil War-era precedents and a few World War II-era precedents—none of which obviously controls the current situation.”57 The result has been bad policies, a nebulous political state of affairs, and a presidency and war effort that have been weakened by their repeated defeats in the courts. The balanced theory of war powers argues that the president does and should enjoy broad powers where the deployment of troops and the initiation of hostilities are concerned; it also argues that the president’s power should, in the absence of a formal declaration of war, be limited when it comes to domestic actions that affect the legal status of private individuals that would normally be under the purview of Congress. This approach seems to be reflected in the legal findings of the Supreme Court in the three major decisions of the war on terrorism. What would the role of Congress be in such a framework? The role of Congress is to safeguard the legislative power, using its deliberative and representative nature to assess the necessity and legitimacy of recommendations from the executive branch. This is basically the role that the Supreme Court forced Congress to play with its decisions in Rasul and Hamdan. In each case after the Court ruled against the administration’s actions, the president went to Congress. In each case President Bush came away with a congressionally-supported policy that was nearly identical to the policy initially struck down by the Court. However, the balanced theory of war powers recommends that such consultation come before, not after, the involvement of the judicial branch. Congress’s role, therefore, is to be an active, if not equal, partner in the formulation of the legal policies implemented to defend the nation from the threat of international terrorism. It may be that the president determines that the nature of the threat is so great that it is neither effective nor efficient to turn to Congress for authorization of each and every action. Such a circumstance is, according to the balanced theory of war powers, exactly what the formal declaration of war can accommodate. By declaring the existence of a state of war and by pledging all the resources of the country and of the government to the president, Congress can discharge its duty in a general manner that recognizes the severity of the threat and cedes legislative power to the president until victory has been achieved. Of course, we cannot know how things might have turned out in a hypothetical alternative scenario, such as one where President Bush asked Congress for and received a declaration of war in

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place of the AUMF of September 18, 2001. However, history and legal precedent can give us some confidence as to how the Supreme Court might have ruled on the question of the detention and trial of suspected terrorists in the presence of a formal declaration of war. Under a declaration of war, President Roosevelt was permitted by the Supreme Court to intern tens of thousands of American citizens of Japanese descent “because Congress, reposing its confidence in this time of war with our military leaders—as inevitably it must do—determined that they should have the power to do just this.”58 Without a declaration of war, President Bush was not permitted to change the procedures through which a detainee may challenge his status. Of course, Congress may not be willing to declare war. It may decide that the identified threat is not sufficiently dangerous to the nation to warrant the granting of extraordinary powers to the president. Or it may fear what the executive branch would do with such expanded powers. But that decision rests solely in the hands of Congress by virtue of the constitutional power to declare war. The power to declare war must be a substantial power, as it is specifically mentioned in the Constitution and clearly and unequivocally given to Congress. The balanced theory of war powers argues that the power to declare war should be understood, and was intended by the Founders, to encompass the control of the legal state of the country and its people, rather than the power to deploy troops and initiate hostilities. By denying this argument, the executive branch either eviscerates the declare war clause by rendering it trivial (if it controls neither troop deployment nor legal status, what does it control?) or broadens it in a way that strengthens, rather than diminishes, Congress’s role (if any and all uses of force constitute a state of war, and if any congressional authorization is the same as a declaration of war, then Congress’s power to declare war governs all uses of force). Neither of the possibilities is an outcome that is constitutionally, legally, or practically sound. The legal and political questions surrounding the detention and trial of individuals suspected of involvement with international terrorism encapsulate many of the critical issues raised in the larger war on terrorism that necessitate a new examination of the war powers of the president and Congress. The right of people to be able to see and challenge the evidence on which the government purports to imprison them, perhaps indefinitely, is one of the most basic and fundamental civil liberties. To defend that right, the Constitution enshrines the writ of habeas corpus and ensures that it can only be suspended by Congress in the event of invasion or rebellion. Three of the amendments that make up the Bill of Rights—the Fourth, Fifth, and Sixth—deal with the rights of the people in the face of legal actions

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by the state. But the war on terrorism challenges these rights in ways not previously seen. As Benjamin Wittes forcefully argues in his work examining the future of law in the war on terrorism, the war paradigm employed by the Bush administration does not work because “just as the word ‘war’ doesn’t quite describe the war on terror intellectually or in practical terms, it doesn’t quite work legally either—at least not if the goal is a legal architecture that grants the president the power he needs yet also generates the sort of accountability for the use of those powers that might sustain them with long-term public confidence.”59 But, as Wittes also notes, in order for anything to change, “Congress has to begin seeing itself not principally as a counter-weight or an opposition stronghold or even as a center for oversight but as a coequal branch, a partner in policy making responsible for the design of systems and for monitoring their use.”60 The balanced theory of war powers encourages just that kind of behavior in Congress. It recommends that Congress stop defining its primary involvement in the conduct of war and the defense of the nation as countering or overseeing the president’s commander in chief power. Instead, the balanced theory urges Congress to contribute where it is most needed and best suited—in the creation and implementation of legal structures and processes. It also pushes the president to recognize and welcome the appropriate role of the legislative branch. Congress not only brings deliberation, representation, and the collected wisdom and judgment of the nation’s lawmakers to the difficult problem of policy crafting, but its participation helps generate legitimacy in the eyes of the American public as well as of the judiciary. It does not diminish the power of the presidency to work with Congress. To the contrary, it strengthens the constitutional foundations on which American government rests.

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Chapter 6

RESTORING THE BALANCE

In a speech on the War Powers Resolution at the University of Kentucky, president Gerald R. Ford asked the question, “where, then, does the balance of [war] powers lie?” Answering his own question, President Ford stated that: [The balance] cannot lie in a constant rivalry for power. As Eugene Rostow has written, this ‘would tend to convert every crisis of foreign policy into a crisis of will, of pride and precedence between Congress and the President.’ The balance must lie, instead, in a frank recognition of the basic strengths and weaknesses of both the executive and legislative branches of government, in the institutional capabilities and limitations imposed by the Constitution and by common sense.1

For the Founding Fathers, that balance emerged from the fundamental structure of constitutional government that they created. “Ambition must be made to counteract ambition,” James Madison wrote in a powerful argument for the separation of powers.2 At first glimpse, this might seem to contradict Ford’s advice to avoid “a constant rivalry” over the conduct of America’s war efforts. But, if the rivalry over control of war powers occurs not with the branches fighting over the right to use this or that particular power but rather involves the presidency and the Congress wielding their own specific powers not only in pursuit of a coherent policy but also to prevent the other from becoming too strong, then Ford’s vision can be

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merged with that of the Founders. While constant rivalry and competition between the branches may not be desirable, neither is a situation in which one branch exercises unchecked power. A sound theory of war powers should create a situation in which each branch uses its unique strengths and weaknesses not only to check the ambitions of the other but also to develop common solutions to the challenges that threaten the security of the nation. This is the task of the balanced theory of war powers. The old paradigm of war powers focused almost exclusively on the question of deploying the troops. And it was this paradigm that has, over the course of the last 50 years, shifted the balance of war powers sharply towards the executive branch. Beginning with President Truman’s actions during the Korean War, the threat posed by the Soviet Union to the United States during the Cold War demanded that decisions about troop deployments and the initiation of hostilities be made quickly, decisively, and flexibly. Such traits, embodied in the president’s constitutional role as commander in chief, are the strengths of the executive branch, and thus the pendulum of war powers swung towards the president. This paradigm persisted even after the collapse of the Soviet Union and the end of the Cold War. In situations with as little American national interest at stake as Somalia and Kosovo, for example, decisions by President Clinton to deploy and use American military might were largely made without the input of Congress. But, the political realities and legal challenges of the war on terrorism simply do not fit nicely into the old paradigms used to defend the United States during the Cold War. The threat posed by international terrorism that manifested itself on September 11, 2001, has swung that pendulum even more toward the president. Congress’s “history of complacency” towards the expansion of presidential war power during the war on terrorism “amounts to a tacit acceptance of the Bush administration’s expansive views of executive authority.”3 While some of the actions of President Bush—such as warrantless wiretapping or the “extraordinary rendition” program in which suspected terrorists were transferred to secret prisons in foreign countries where coercive interrogation measures could be applied outside of the jurisdiction of U.S. law4—occurred in secret beyond the sight of Congress or the public, “many of the most aggressive positions that the Bush administration staked out after 9/11—from the creation of Guantánamo to what amounted to the suspension of America’s Geneva Conventions obligations governing the treatment of captured combatants—were a matter of public record. Not only did Congress not flinch at such unilateral actions, but it also helped to enable the expansion of presidential authority by passing the USA PATRIOT Act, which gave the executive sweeping new law enforcement powers.”5

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While the further tilting of war powers towards the executive branch may have merely followed on the developments of the Cold War, in the age of terror the imbalance has become much more dangerous. Prior to the outbreak of the war on terror, struggles over war powers focused on questions of overseas troop deployments and the power to initiate hostilities that tended to play to the strengths of the president. Over the course of the Cold War, Congress abandoned its vital role as the balancer of executive power and the protector of individual liberties, instead becoming a partisan critic of presidential use of the armed forces.6 This shift in focus by Congress resulted in a gross imbalance in the distribution of war powers, which was further exacerbated by the demands of the war on terror. As the New York Times notes, “it’s very likely that any president, Republican or Democrat, would have accrued more authority in the aftermath of 9/11.”7 Senator John Warner expressed concern over Congress’s abdication of its balancing role, stating that “the tripod [referring to the three branches of government] has got to stand on three legs, and if one leg gets weak, the tripod begins to not supply the support this country needs. I see [Congress] getting weak.”8 It is the domestic and legal aspects of the war on terror that make the shift in the balance of war powers so problematic today. The laws of war unquestionably give belligerents the right to detain until the end of hostilities those fighting on behalf of the enemy. But when a war has no conceivable end, as the war on terrorism does not, is indefinite detention still justifiable legally and morally? When enemies are not identifiable by uniform or even by nationality, as they were during the wars of the past, do those accused of fighting for the enemy not deserve an opportunity to rebut the charges against them? When the enemies may be living among us, should our government have the power to monitor our conversations without obtaining warrants or meeting any demonstrable burden of proof? These questions do not lend themselves to being solved by the strengths of the executive branch to which President Ford looked to resolve the problem of war powers. Rather, the strengths of the presidency—its unitary and centralized nature, its decisiveness, its flexibility—tend to lead the executive branch to consolidate and expand its power in the face of a crisis. These tendencies are reflected in the policies pursued by President Bush as part of the war on terror. But these are not the only traits required in the war on terrorism. The policies demanded by the domestic aspects of the war on terror, their implications for the legal rights of those suspected to be in the employ of international terror organizations, and the need to identify those people inside the United States who are working for the enemy all require careful deliberation. The government must weigh the defense of the country against the rights of the people within it, and

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consider how the long-term interest of the nation should be understood. Such decisions demand the traits and strengths possessed by Congress, particularly its deliberative and representative natures. But the unbalancing of governmental power that began during the Cold War and that has been accelerated by the onset of the age of terror has relegated Congress to the sidelines, watching as the president implements policies and hoping that the courts will strike down the most problematic ones. The theory of war powers presented here offers a way to restore muchneeded balance to the manner and process by which the United States government wields its authority in time of crisis. Understanding the power to declare war as controlling the legal status of the nation and its people rather than the ability to deploy troops and initiate hostilities effectively restores balance to American government that has been lacking throughout the war on terrorism. It puts the conduct of overseas armed conflicts firmly, although not exclusively, in the hands of the president, where it has effectively been since the end of World War II. Such conflicts demand the flexibility and decisiveness that are embodied in the executive branch. For its part, Congress still maintains the ability through the power of the purse to veto any military endeavor undertaken by the president. However, by adhering to the balanced theory of war powers, Congress’s attention will, as it should, be focused on the attendant domestic legal issues surrounding the war, such as those explored in the previous pages. Issues such as domestic surveillance and the detention and trial of suspected terrorists require making decisions about how best to balance national security against the rights of the nation’s citizens and residents and how to balance the short-term needs of security against the long-term requirements of legitimacy and accountability. Such debates and trade-offs demand the deliberative and representative nature of the legislative bodies. It is the job of Congress to make the laws necessary for the running and protection of the nation; it is the job of the president to execute those laws. When the nature of the laws themselves are called into question, it must be the makers of the laws, not their executor, that decides which are necessary and which can be discarded, which are obsolete and which are still relevant and needed. In the face of an open-ended threat like the war on terrorism, any other balance threatens the very fabric of American constitutional government. The war on terrorism may in fact require the recognition of the existence of a legal state of war. If the threat posed to the United States by al Qaeda is sufficiently dangerous, and if the nature of the war on terrorism demands it, then it may be necessary to view the domestic home front of the United States as a battleground, or even the front lines, in the struggle. And if such a determination is made, then the president should have the

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broadest and most complete complement of war powers at his disposal. But that determination can only be made by Congress in a formal declaration of war that acknowledges the existence of a legal state of war and transfers “all the resources of the United States” to the president. It cannot be made by the president alone. If the president and Congress can agree that the nature of the threat to the nation is so great as to warrant the granting of broad powers to the president, then the problem of the Supreme Court’s role in policy making lessens as well. As the Court’s striking down of elements of the Military Commissions Act in the Boumediene decision makes clear, while the president and Congress may agree on a policy, that policy is not necessarily constitutional. However, where the action in question is not fundamentally unconstitutional, the Court’s decisions historically in times of crisis indicate a general willingness to defer to the judgment of the political branches on a question of policy. Traditionally, the political question doctrine has led the Court to avoid making decisions for which it is not qualified, including decisions about the wisdom and efficacy of policies, rather than their legality or constitutionality. Agreement between the executive and legislative branches makes it more likely that the judicial branch will refrain from involving itself in the policy process, resulting in more efficient and coherent outcomes. The prospect of a deferential Supreme Court functions in and of itself as a balancing mechanism, as Congress would carefully consider the scope of its grants of authority to the president. Knowing the implications of a formal declaration of war raises the stakes of such an action, and would likely make Congress exceedingly cautious, if not reluctant, to declare war. But this is exactly how it should be. Unifying the legislative and executive powers violates the most fundamental principle of American constitutional democracy and should only occur in the most serious and dangerous of scenarios. J. William Fulbright, a Democratic senator from Arkansas, once remarked on the question of war powers that “it is distasteful and dangerous to vest the executive with powers unchecked and unbalanced. My question is whether we have any choice but to do so.”9 The theory of war powers offered here presents a way out of the conundrum identified by Senator Fulbright. It encourages Congress to use its legislative powers to fulfill its role as a meaningful check on the domestic powers of the president while maintaining in the hands of the president sufficient flexibility to use the armed forces to defend the country. It recognizes that the political branches of the government must be free, within certain limits enforced by the watchful eye of the Supreme Court, to determine how best to protect the country. And most important, it creates a framework that is supported

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by the arguments of the Founding Fathers, by the language and intentions of the Constitution, by the history of political practice, and by the decisions of the Supreme Court up to and throughout the war on terrorism. The war against international terrorism is a war unlike any in American history. It is a conflict with no end in sight, no distinct standards of victory, and no measures by which to define progress. It is certainly possible that it will never end. It is this nature that so raises the stakes involved in the way in which the United States decides to fight. In traditional wars, it may be necessary to give the president extraordinary power so that he may defend the nation, but such grants are temporary, and when the war ends, the emergency powers must be set aside. For his refusal to transform his command of the American revolutionary army into the political command of the new American nation, George Washington is sometimes referred to as the “American Cincinnatus” in reference to Lucius Quinctius Cincinnatus, who served as dictator of Rome in 458 and 439 b.c.10 In Rome, the position of dictator was created to give a single individual extraordinary powers in order to defend the republic in time of extreme crisis; specifically, the dictator became chief executive and supreme military commander of the republic and from the edicts of the dictator there could be no appeal.11 Cincinnatus was called from his farm to defend Rome and after defeating the Aequians in 15 days immediately gave up his dictatorial powers despite having been granted six months of authority.12 Throughout the existence of the Roman republic the example of Cincinnatus set the standard for 78 of the 79 dictators that followed him; each was given extraordinary powers for no more than six months, and almost every one resigned office immediately after confronting the threat for which he had been appointed. Duty to the state and its republican form of government led Cincinnatus and all but one of his successors to lay down their absolute power without consideration for what else could be done with that power. It was this sense of commitment to the Roman republic that allowed its representative and balanced government to survive during times of crisis by granting extraordinary and unchecked powers to a single executive. The last dictator of the Roman republic, however, broke this pattern. It was the assumption of permanent dictatorial power by Julius Caesar that brought down the Roman republic and ushered in Rome’s imperial era. In the war on terrorism, the president must not be allowed to assume extraordinary powers indefinitely or without checks from the other branches. Its indefinite nature means that extraordinary powers assumed by the president may never be relinquished, which threatens the basic allocation and separation of powers enshrined in the Constitution. Policy must flow from process to ensure that the balanced government created by the Framers is

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not undone. Extreme care must be taken before any president is given the kind of sweeping and unchecked legislative power claimed by the Bush administration during the war on terror. The United States does not need any Julius Caesars. Rather, it needs Congress to insert itself vigorously into the fray where the rights and liberties of the domestic arena are concerned. And it needs presidents who realize that their power and legitimacy are enhanced, not diminished, by consulting with Congress. It needs presidents who understand that unlimited power, even when used in defense of the nation, is a threat to the very nature of American constitutional government. The United States needs more American Cincinnati.

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NOTES

CHAPTER 1: UPSETTING THE BALANCE 1. As the argument presented herein hangs on the definition of a legal state of war, it is essential to distinguish between legal states of war and undeclared states of conflict, even those referred to as “wars.” However, since the on-going conflict against international terrorism is conventionally known as the war on terror, I will use that terminology, but will make it clear when I am referring to legal definitions of “war.” 2. If one uses September 11, 2001, as the starting date for the war on terrorism then, as of the writing of this book, the war is almost seven years old. A case could be made that the numerous attacks by al Qaeda and other similar terrorist organizations against U.S. assets during the 1990s (the first bombing of the World Trade Center, the bombing of the Khobar Towers barracks in Saudi Arabia, the dual bombings of American embassies in Kenya and Tanzania, and the bombing of the USS Cole in Yemen) constituted the beginning of the conflict, and that the war on terror is really 15 years old. In contrast, World War I lasted, for the United States, just over one year; World War II four years; the Korean War three years. The only real competitor for the longest American war is the Vietnam War. The United States began training South Vietnamese forces in 1956, and the first American soldiers died in Vietnam in 1959. Many analysts and historians consider the Gulf of Tonkin incident and subsequent resolution of 1964 as the formal beginning of the Vietnam War for the United States, which then lasted until the withdrawal of U.S. combat forces in 1973. So, depending on when one begins counting, the Vietnam War, for the United States, lasted either 17, 15, or 9 years. For arguments that the war on terrorism should not be considered a war, see: Katrina Vanden Heuvel, “It’s Not a ‘War’ on Terror,” thenation.com, September 8,

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2006, http://www.thenation.com/blogs/edcut?pid=119330. See also “Britain Stops Using ‘War on Terror’ Phrase,” MSNBC.com, April 16, 2007, http://www. msnbc.msn.com/id/18133506/. On Tuesday, March 24, 2009, the Obama administration issued a memo stating that “this administration prefers to avoid using the term ‘Long War’ or ‘Global War on Terror.’ Please use ‘Overseas Contingency Operation.’ ” See also Scott Wilson and Al Kaman, “ ‘Global War on Terror’ is Given a New Name,” Washington Post, March 25, 2009, http://www.washingtonpost.com/wp-dyn/content/ article/2009/03/24/AR2009032402818.html?wprss=rss_politics/administration. 3. George W. Bush, “Address to a Joint Session of Congress and the American People,” September 20, 2001, http://www.whitehouse.gov/news/releases/ 2001/09/20010920–8.html. 4. Mark E. Brandon, “War and the American Constitutional Order,” in The Constitution in Wartime, ed. Mark Tushnet (Durham, NC: Duke University Press, 2005), 23. 5. Alexander Hamilton, John Jay, and James Madison, The Federalist Papers, ed. Clinton Rossiter (New York: Mentor Books, 1961), 321–22. 6. William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime (New York: Vintage Books, 1998), 222. 7. Edward Keynes, Undeclared War: Twilight Zone of Constitutional Power (University Park: Pennsylvania State University Press, 1991), 33. 8. The War Powers Resolution and its implications will be discussed in greater detail in chapters 2 and 3. 9. Andrew Rundalevige, The New Imperial Presidency: Renewing Presidential Power after Watergate (Ann Arbor: University of Michigan Press, 2005), 192. 10. H. L. Pohlman, Terrorism and the Constitution: The Post-9/11 Cases (Lanham, MD: Rowman and Littlefield, 2008), 270. 11. Alberto Gonzales, “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” United States Department of Justice, January 19, 2006, 1, http://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf. 12. Jordan J. Paust, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror (New York: Oxford University Press, 2007), 99. 13. Geoffrey Stone, “King George’s Constitution,” University of Chicago Law School Faculty Blog, December 20, 2005, http://uchicagolaw.typepad.com/ faculty/2005/12/king_georges_co.html. 14. See Hamdi v Rumsfeld 542 U.S. 507 (2004); Hamdan v Rumsfeld 548 U.S. 557 (2006), and Rasul v Bush 542 U.S. 466 (2004). 15. George W. Bush, The National Security Strategy of the United States of America (Washington, DC: The White House, September 2002), iv, http://merln. ndu.edu/whitepapers/USnss2002.pdf. Emphasis added. 16. Paust, Beyond the Law, 43. 17. Douglas J. Feith, War and Decision: Inside the Pentagon at the Dawn of the War on Terrorism (New York: Harper, 2008), 296. 18. Gene Healy, “The Imperial Presidency and the War on Terror,” The Cato Institute, April 1, 2006, http://www.cato.org/research/articles/cpr28n2–1-060401.html.

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19. Ian Shapiro, Containment: Rebuilding a Strategy Against Global Terror (Princeton, NJ: Princeton University Press, 2007), 13. 20. The problem is that because “the primary purpose of counterterrorism is the prevention of future acts, while the criminal law has developed primarily to punish conduct that has already occurred,” attempts by the government to protect the nation from acts of terrorism challenge the rules and procedures used in criminal trials. Relying on the regular court system will either leave the country unprotected or will undermine the protections built into the criminal process. John Farmer, “A Terror Threat in the Courts,” New York Times, January 13, 2008. 21. United States v. Curtiss-Wright Export Corp. 299 U.S. 304, 319 (1936). 22. Phillip R. Trimble, United States Foreign Relations Law (New York: Foundation Press, 2002), 36. 23. John O. McGinnis, “Executive Power in the War on Terror,” Policy Review, 146 (December 2007/January 2008), http://www.hoover.org/publications/ policyreview/11893481.html. 24. Ibid. 25. Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: W.W. Norton, 2007), 90–95 and 130–36. 26. Ibid., 130. 27. For a list of all uses of force by the United States, see Richard F. Grimmett, Instances of Use of United States Armed Forces Abroad, 1798–2004, http://www. history.navy.mil/library/online/forces.htm. The U.S. Congress has declared war in five conflicts: the War of 1812, the Spanish-American War, the Mexican-American War, World War I, and World War II. In some of these conflicts, war was formally declared against more than one enemy state (as in World War II, when war was declared against Germany, Japan, Italy, Bulgaria, Hungary, and Romania). In total, the U.S. Congress has declared war 11 times in five distinct conflicts. 28. These conflicts are the Quasi-War against France (1798–1800), the First Barbary War (1801–1805), the Second Barbary War (1815), raids on slave traffic in Africa (1820–1823), redress for an attack on a U.S. naval vessel in Paraguay (1859), intervention in Lebanon to protect the government against an insurrection (1958), the Vietnam War (1964–1973), intervention in Lebanon to restore the Lebanese government after an Israeli invasion (1982), the first Gulf War to liberate Kuwait from Iraqi occupation (1991), the use of force against those responsible for the attacks of September 11, 2001, also known as the Authorization for the Use of Military Force that authorized the invasion of Afghanistan (2001–present), and the Authorization for the Use of Military Force that authorized the invasion of Iraq (2003–present). See Republican Study Committee, “Information Regarding Declarations of War and Congressionally Authorized Military Engagements,” October 23, 2003, http://johnshadegg.house.gov/RSC/ DeclarationofWar.PDF. 29. John Yoo, “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them,” Office of Legal Counsel, United States Department of Justice, September 25, 2001, http://www. usdoj.gov/olc/warpowers925.htm.

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30. The concept of “total war” as well as its implications will be discussed in chapter 2. 31. Bush, “Address to a Joint Session of Congress and the American People.” 32. Benjamin A. Kleinerman, “ ‘The Court Will Clean It Up’: Executive Power, Constitutional Contestation, and War Powers,” in The Supreme Court and the Idea of Constitutionalism, ed. Steven Kautz, Arthur Melzer, and Jerry Weinberger (Philadelphia: University of Pennsylvania Press, 2009), 236. 33. Ibid. 34. Baker v. Carr, 369 U.S. 186 (1962). 35. Kleinerman, “ ‘The Court Will Clean It Up,’ ” 246. 36. Ibid. 37. Benjamin Wittes, Law and the Long War: The Future of Justice in the Age of Terror (New York: Penguin Press, 2008), 10. 38. Ibid., 11. 39. John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (Chicago: University of Chicago Press, 2005), 151. 40. The declare war clause is quite simple and reads “The Congress shall have Power To declare war.” The Constitution of the United States of America, Art. 2, Sec. 8. 41. Hamilton, Jay, and Madison, The Federalist Papers, 301. 42. Ibid., 303. 43. Ibid., 202. 44. John Locke, Two Treatises of Government (New York: Mentor Books, 1965), 410. 45. Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (New York: Back Bay Books, 2008), 123. 46. David M. O’Brien, Constitutional Law and Politics: Struggles for Power and Governmental Accountability, 6th ed. (New York: W.W. Norton, 2005), 310. 47. For example, in April 2007, the Supreme Court ruled that greenhouse gasses, like carbon monoxide, should be classified as air pollutants and subject to regulation by the Environmental Protection Agency. The Bush administration had, unsuccessfully, argued that federal agencies lacked the jurisdiction to regulate carbon dioxide emissions, and that the issue should have been left to Congress, rather than an executive agency, to decide what, if any, regulation should be imposed. See David G. Savage, “Justices Push EPA to Act on Car Emissions,” Los Angeles Times, April 3, 2007. 48. Alberto R. Gonzales, “Intercepting al Qaeda: A Lawful and Necessary Tool for Protecting America” (Prepared Remarks for Attorney General Alberto R. Gonzales at the Georgetown University Law Center), January 24, 2006, U.S. Department of Justice, www.USDoj.gov/ag/speeches/2006/ag_speech_0601241.html. 49. The district court ruling was, to date, the final say on the matter, as the president subsequently sought and obtained congressional authorization for the program. 50. Charlie Savage, “Judge’s Ruling Bars Warrantless Wiretaps,” Boston Globe, August 18, 2006, http://www.boston.com/news/nation/articles/2006/08/18/ judges_ruling_bars_warrantless_wiretaps/. 51. These cases will be examined in greater detail in chapter 4.

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CHAPTER 2: THE MEANING OF THE DECLARE WAR CLAUSE 1. The quotation comes from An Historical Review of the Constitution and Government of Philadelphia (1759) and was attributed to Benjamin Franklin in the 1812 edition. However, in a 1760 letter to David Hume, Franklin claimed to be the publisher, but not the author, of the Review. See http://en.wikiquote.org/wiki/ Benjamin_Franklin. 2. Terminiello v. Chicago, 337 U.S. (1949) 36. 3. “Poll Finds U.S. Split Over Eavesdropping,” CNN.com, January 11, 2006, http://www.cnn.com/2006/POLITICS/01/11/poll.wiretaps/index.html. 4. ACLU.com, “New Poll: Majority of American Voters Want Next President to Restore and Protect Civil Liberties; Seek a More Assertive Congress,” http://www.aclu.org/safefree/general/32084res20071004.html. 5. Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2648 (2004). 6. As Philip Bobbitt notes, “[the Bush administration] has rather consistently chosen what one might call ‘the path of least consent.’ When it wanted to expand electronic surveillance it did so in a secret executive order; when it wished to avoid habeas corpus petitions from its detainees it put them in an off-shore penal colony rather than risking judicial oversight.” Philip Bobbitt, Terror and Consent: The Wars for the Twenty-First Century (New York: Knopf, 2008), 540. 7. Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: W.W. Norton, 2007), 209. 8. Ibid., 214. 9. Ibid., 215. 10. Ibid., 82. 11. John Yoo, “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them.” Office of Legal Counsel, United States Department of Justice, September 25, 2001, 3, http:// www.usdoj.gov/olc/warpowers925.htm. Emphasis added. 12. Alberto R. Gonzales, “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” Office of the Attorney General, United States Department of Justice, January 19, 2006, 7, http://www. usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf. 13. H. L. Pohlman, Terrorism and the Constitution: The Post-9/11 Cases (Lanham, MD: Rowman and Littlefield, 2008), 270. 14. William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime (New York: Vintage Books, 1998), 25–39. 15. Ibid., 182. 16. Ibid., 192. 17. Ibid. 18. “Bush Compares Iraq, Terror Wars to World War II,” CNN.com, June 3, 2004, http://www.cnn.com/2004/ALLPOLITICS/06/02/bush.speech/index.html. See also “Bush Likens ‘War on Terror’ to World War III,” ABC News Online, May 6, 2006, http://www.abc.net.au/news/newsitems/200605/s1632213.htm. 19. Goldsmith, The Terror Presidency, 187.

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20. George W. Bush, “Press Conference of the President,” The White House, December 19, 2005, http://www.whitehouse.gov/news/releases/2005/12/20051219– 2.html. 21. Gonzales, “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” 5. 22. Ronald Spiers, “Terrorism: How Do You Know When You Win,” Rutland Herald, March 24, 2004. 23. While this is true in the strict legal sense, defenders of the president’s actions would point to the Authorizations for the Use of Military Force passed by the United States Congress on September 18, 2001 and October 11, 2002 as functional equivalents to a declaration of war. For example, Attorney General Gonzales argues that “Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the President’s use of all traditional and accepted incidents of force in this current military conflict. . . .” Gonzales, “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” 2. However, as will be argued herein, a declaration of war is a specific tool of Congress that contains detailed and exact language that is not found in the two AUMFs that constitute congressional authorization in the war on terror. Thus, an AUMF does activate some of the war powers of the president, but is not as expansive as a formal declaration of war. This argument will be developed in detail below. 24. R. Ernest Dupuy and Trevor N. Dupuy, “World War I and the Era of Total War,” in The Harper Encyclopedia of Military History (New York: Harper Collins, 1993), 1004. 25. John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11. (Chicago: The University of Chicago Press. 2005), 151. 26. Karl K. Schonberg, “Global Security and Legal Restraint: Reconsidering War Powers after September 11,” Political Science Quarterly 119, no. 1 (2004): 140. Emphasis added. 27. Michael J. Glennon, Constitutional Diplomacy (Princeton, NJ: Princeton University Press, 1990), 72. 28. Harold Hongju Koh, The National Security Constitution: Sharing Power after the Iran-Contra Affair (New Haven, CT: Yale University Press, 1990), 75. 29. Louis Fisher, Presidential War Power (Lawrence: University Press of Kansas, 2004), 262. 30. David Gray Adler, “The Constitution and Presidential Warmaking,” in The Constitution and the Conduct of American Foreign Policy, eds. David Gray Adler and Larry N. George (Lawrence: University Press of Kansas, 1996), 183. 31. Ibid., 185. 32. Ibid. 33. Ibid., 186. 34. Ibid. 35. Saikrishna Prakash, “Unleashing the Dogs of War: What the Constitution Means by ‘Declare War,’ ” Cornell Law Review 93 (2007), 48.

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36. Ibid., 50. 37. Ibid. 38. Ibid. 39. Ibid., 67–77. 40. Ibid., 77. 41. Ibid., 113. Italics in original. 42. Ibid., 64. 43. Robert J. Delahunty and John Yoo, “Making War,” Cornell Law Review 93 (2007), 124. 44. Ibid., 126. 45. The Constitution of the United States of America, Art. 1, Sec. 10. 46. Delahunty and Yoo, “Making War,” 126. 47. Ibid., 136. 48. Prakash, “Unleashing the Dogs of War,” 64. 49. Fisher, Presidential War Power, 18. 50. Ibid., 19. 51. Adler, “The Constitution and Presidential Warmaking,” 200. 52. Ibid., 202. 53. Ibid., 205. 54. Delahunty and Yoo, “Making War,” 159. 55. Ibid., 159–60. 56. Ibid., 161 and 162. 57. Ibid., 163. 58. Ibid. 59. Michael B. Oren, Power Faith, and Fantasy: American in the Middle East 1776 to the Present (New York: W.W. Norton, 2007), 55. 60. Adler, “The Constitution and Presidential Warmaking,” 212. 61. On the rejection of the War Powers Resolution by the presidents, one analyst writes that “[e]very President from President Nixon forward has taken the position that the War Powers Resolution is an unconstitutional infringement on the authority of the President, as Commander-in-Chief, to utilize the Armed Forces of the United States to defend what he determines are the vital national security interests of the United States.” See Richard F. Grimmett, “Congressional Use of Funding Cutoffs Since 1970 Involving U.S. Military Forces and Overseas Deployments,” CRS Report for Congress, Congressional Research Service, January 10, 2001, http://www.fas.org/man/crs/RS20775.pdf. On the argument that the War Powers Resolution has given too much power to the president, Louis Fisher claims that “by recognizing that the President may use armed force for up to 90 days without seeking or obtaining legislative authority, the resolution legalizes a scope for independent presidential power that would have astonished the framers.” See Fisher, Presidential War Power, 145. 62. John Yoo, “Wartime, Constitution Empower Presidents,” San Diego Union-Tribune, January 15, 2006. 63. John Yoo, “Wartime Executives: Embrace the Need for Decisive Leadership,” The Press-Enterprise (Riverside, CA), March 19, 2006.

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64. Yoo, “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them,” 4. 65. John Yoo, “How the Presidency Regained Its Balance,” The New York Times, September 17, 2006. 66. Yoo, The Powers of War and Peace, x. 67. Ibid., x–xi. 68. Ibid., vii. 69. John Yoo, War by Other Means: An Insider’s Account of the War on Terror (New York: Atlantic Monthly Press, 2006), 11. 70. Authorization for the Use of Military Force, Public Law 107–40 [S. J. RES. 23], September 18, 2001, http://news.findlaw.com/wp/docs/terrorism/ sjres23.es.html. 71. Yoo, “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them,” 17. 72. Yoo, War by Other Means, 103. 73. Ibid., 113–15. 74. Ibid., 144. 75. Ibid., 226. 76. American Civil Liberties Union v. National Security Agency, United States District Court, Eastern District of Michigan, August 17, 2006, 36, http://news. findlaw.com/nytimes/docs/nsa/aclunsa81706opn.pdf. 77. The case was ultimately dismissed by the U.S. Court of Appeals for the Sixth Circuit on procedural grounds, ruling that the defendants could not prove that they had been harmed by the warrantless surveillance program and thus lacked standing. The Supreme Court declined to hear an appeal of the Sixth Circuit’s decision. However, since the appeals court did not rule on the merits of the case, Judge Diggs’ opinion is the only legal opinion concerning the NSA program. Subsequent to Judge Diggs’ decision, the Bush administration moved the surveillance program under the umbrella of the FISA program and has sought explicit congressional authorization for the program. See http://blog. wired.com/27bstroke6/2008/02/supremes-wont-h.html and http://www.nytimes. com/2006/09/29/washington/29nsa.html. 78. The details of these cases will be discussed in chapter 5. For an overview of the interaction between the Bush administration and the Supreme Court on the rights of detainees in the war on terror, please see http://www.nytimes.com/ imagepages/2008/06/13/washington/13scotus.GR.ready.html. 79. Korematsu v. United States 323 U.S. 214 (1944). 80. John Mueller, Overblown: How Politicians and the Terrorism Industry Inflate National Security Threats, and Why We Believe Them (New York: Free Press, 2006), 3 and 5. Emphasis added. 81. Ibid., 13. 82. Fareed Zakaria, “True or False: We Need a Wartime President,” Newsweek, July 7–14, 2008, http://www.newsweek.com/id/143747. 83. Joby Warrick and Walter Pincus, “Bush Inflated Threat from Iraq’s Banned Weapons, Report Says,” Washington Post, June 6, 2008, A03.

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84. Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004). 85. Goldsmith, The Terror Presidency, 90–96. 86. Alexander Hamilton, John Jay, and James Madison, The Federalist Papers, ed. by Clinton Rossiter. (New York: Mentor Books, 1961),418. 87. Louis Fisher, “Unchecked Presidential Wars” The University of Pennsylvania Law Review 148, no. 5 (May 2000), 1647. 88. Adler, “The Constitution and Presidential Warmaking,” 186. 89. Hamilton, Jay, and Madison, The Federalist Papers, 165 and 256. 90. Locke, Two Treatises of Government (New York: Mentor Books, 1965), 410. 91. Ibid. 92. Hamilton, Jay, and Madison, The Federalist Papers, 301. 93. Ibid., 423–4. 94. Ibid., 447. 95. Yoo, “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them,” 4. 96. Charles A. Stevenson, Congress at War: The Politics of Conflict Since 1789 (Washington, DC: National Defense University Press, 2007), 22. 97. Ibid., 22–9. 98. Ibid., 3. 99. Ibid., 4. 100. Bas v. Tingy, 4 U.S. (4 Dall.) 40 (1800). 101. Ibid. 102. The Prize Cases, 67 U.S. (2 Black) 365 (1862). 103. Ibid. 104. Jennifer K. Elsea and Richard F. Grimmett, “Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications,” CRS Report for Congress, August 11, 2006, http://www.au.af.mil/ au/awc/awcgate/crs/rl31133.pdf. 105. James E. Baker, In the Common Defense: National Security Law for Perilous Times (New York: Cambridge University Press, 2007), 40–44. 106. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 107. Ibid. 108. Ibid. 109. Stevenson, Congress at War, 79. 110. Carl von Clausewitz, On War, ed. and trans. Michael Howard and Peter Paret (Princeton, NJ: Princeton University Press, 1976). See also Philip Bobbitt, The Shield of Achilles: War, Peace, and the Course of History (New York: Anchor Books, 2003), 196 and B. H. Liddell Hart, Strategy (New York: Meridian, 1991), 338–44. 111. This is not to minimize the loss of life incurred of any of these conflicts. However, as a nation, the United States contributed or sacrificed little during any of the wars in comparison to World War I or II. 112. See, for example, Rick Montgomery, “All Quiet on the Home Front as War Rages,” Albany Times-Union, March 23, 2007, http://timesunion.com/

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AspStories/story.asp?storyID=574520&category=NATIONAL&newsdate=3/23/ 2007. See also Zakaria, “True or False: We Need a Wartime President.” 113. Elsea and Grimmett, “Declarations of War and Authorizations for the Use of Military Force,” 29. Emphasis added. 114. Rehnquist, All the Laws But One, 200–201. 115. For the texts of the declarations of war and key authorizations for the use of military force, please see: Elsea and Grimmett, “Declarations of War and Authorizations for the Use of Military Force,” 83–109. Emphases added. 116. It may be noted that while the declarations of war against Great Britain in 1812, against Mexico in 1846, and against Spain in 1898 do formally declare the existence of a state of war, they do not use the language about pledging all the resources of the country to the president. But this should not be surprising. The reality of total war did not really come into existence until the beginning of the 20th century, and World War I represents the first real total war. Additionally, during the 19th century, the United States government did not yet possess the domestic infrastructure or capability to extract and mobilize resources and power from the home front. See Fareed Zakaria, From Wealth to Power: The Unusual Origins of America’s World Role (Princeton, NJ: Princeton University Press, 1998). For World War I as the first total war, see Dupuy and Dupuy, The Harper Encyclopedia of Military History, 1004. 117. The Boumediene decision found that the Combatant Status Review Tribunals established by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 for detainees to challenge their detentions were inadequate. The detainees were stripped of their right to appeal their detention in federal courts, were not allowed to have lawyers present but were rather assigned a “personal representative” by the military, and the tribunals were not required to present the evidence against the detainee and could only appeal certain prescribed aspects of the tribunal process. In a 5–4 decision, the Supreme Court found that this process was insufficient, and that the detainees have basic constitutional rights to appeal their detention before U.S. courts. See David Stout, “Justices Rule Terror Suspects Can Appeal in Civilian Courts,” New York Times, June 13, 2008. 118. Edgar Cowan, Congressional Globe, 37th Congress, 2nd session, January 28, 1862, 516, http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName= 058/llcg058.db&recNum=578. Emphasis added. 119. Neil J. Kinkopf and John Yoo, “What are the Limits of Presidential Power?” Legal Affairs, November 14–18, 2005, http://www.legalaffairs.org/ webexclusive/debateclub_presidentialpower1105.msp. 120. John C. Eastman, “The Constitutionality of the NSA Surveillance Program: A Letter to the House Judiciary Committee,” January 27, 2006, http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=926000. 121. Gonzales, “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” 7. 122. Pohlman, Terrorism and the Constitution, 96–99. 123. The Court ruled that because the laws of war as understood in international law did not include the power to seize such property, a declaration of war, which activates the president’s war powers as understood in domestic and

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international law, would not include such a power either. Rather, Congress would have to explicitly authorize the president to take such an action. Brown v. United States, 12 U.S. 110 (1814). 124. Little v. Barreme, 6 U.S. 170 (1804). 125. Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004). 126. Authorization for the Use of Military Force, Public Law 107–40 [S. J. RES. 23], September 18, 2001, http://news.findlaw.com/wp/docs/terrorism/sjres23. es.html. 127. Authorization for the Use of Military Force Against Iraq, Public Law 107–243 [H.J. RES 114], October 16, 2002, http://www.c-span.org/resources/pdf/ hjres114.pdf. 128. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). 129. Gonzales, “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” 6–7. 130. Yoo, “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them,” 5. 131. United States v. Curtiss-Wright.

CHAPTER 3: THE DEPLOYMENT OF THE ARMED FORCES AND INITIATION OF HOSTILITIES 1. “Senators-in-Chief,” Wall Street Journal, January 25, 2007. 2. U.S. Statutes at Large, Ch. 102, 2 Stat. 755. 3. Charles A. Stevenson, Congress at War: The Politics of Conflict since 1789, (Washington, DC: National Defense University Press, 2007), 16. 4. Ibid., 17. 5. Ibid., 17–18. 6. Ibid., 18. 7. Public Law 88–408, 78 Stat. 384, August 10, 1964, http://www.cnn.com/ SPECIALS/cold.war/episodes/11/documents/tonkin/. 8. Congress did eventually pass legislation prohibiting the use of appropriated funds in Somalia, but did so only after President Clinton announced his intention to withdraw all combat troops from the country. 9. Stevenson, Congress at War, 28. 10. Louis Fisher, Presidential War Power, 2nd ed., rev. (Lawrence: University of Kansas, 2004), 198. 11. Ibid., 200. 12. Mitchell v. Laird, 159 U.S. App. DC 344 (1973). 13. Ibid. 14. Atlee v. Laird, U.S. District Court, Eastern District of Pennsylvania, 1972. 347 F.Supp. 689. 15. The court noted that “life insurance companies might not be obligated to pay benefits to the beneficiaries of individuals killed in Vietnam if it were held that this country is at war. A holding that this country is not at war might lead to suits challenging the combat pay to members of the armed forces in Southeast Asia.” Ibid., footnote 24.

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16. Holtzman v. Schlesinger, 361 F. Supp. 553 (E.D.N.Y., 1973). 17. Stevenson, Congress at War, 4. 18. Richard F. Grimmett, “Congressional Use of Funding Cutoffs Since 1970 Involving U.S. Military Forces and Overseas Deployments,” CRS Report for Congress, January 10, 2001, 2, http://www.fas.org/man/crs/RS20775.pdf. 19. Ibid., 5–6. 20. Ibid., 2–3. 21. Spaulding v. Douglass Aircraft, 60 F. Supp. 985, 988 (S.D. Cal. 1945), aff’d. 154 F.2nd 419 (9th Cir. 1946). 22. William G. Howell and Jon C. Pevehouse, While Dangers Gather: Congressional Checks on Presidential War Powers, (Princeton, NJ: Princeton University Press, 2007), 10–23. 23. John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (Chicago: The University of Chicago Press, 2005), 105. 24. Robert F. Turner, Repealing the War Powers Resolution (Washington, DC: Brassey’s, 1991), 81 and 93. 25. David B. Rivkin, Jr. and Lee A. Casey, “What Congress Can (and Can’t) Do on Iraq,” Washington Post, January 16, 2007. This point will be considered in greater detail below when examining the options before Congress in the Iraq war. 26. Holtzman v. Schlesinger, 553. 27. Arguably, the NATO airstrikes over Kosovo stand as the one instance in which the sixty-day clock of the War Powers Resolution has been triggered. A small group of Congressmen sued the president, seeking a judicial decision that President Clinton had violated the War Powers Resolution and was conducting the bombing of Serbia in opposition to the law. However, the suit was dismissed for lack of standing—because the Congress as an institution had not voted to order President Clinton to stop the operation. Thus, there was no dispute to be resolved. See Fisher, Presidential War Powers, 201. 28. Stevenson, Congress at War, 6–7. 29. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 611, 1952. 30. Ibid., 637. 31. Ibid. 32. For more on the argument that Congress has effectively devolved the power to control the deployment of the armed forces to the president, see James L. Sundquist, The Decline and Resurgence of Congress (Washington, DC: Brookings Institution Press, 1981), 110–26, 265–72; Barbara Hinckley, Less Than Meets the Eye: Foreign Policy Making and the Myth of the Assertive Congress (Chicago: University of Chicago Press, 1994), 195–203; Andrew Rundalevige, The New Imperial Presidency: Renewing Presidential Power after Watergate (Ann Arbor: University of Michigan Press, 2005), 192–200. 33. Robert J. Delahunty and John Yoo, “Making War,” Cornell Law Review 93 (2007): 165–66. Emphases in the original. 34. Harold Hongju Koh, “Why the President Almost Always Wins in Foreign Affairs,” in The Constitution and the Conduct of American Foreign Policy, ed.

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David Gray Adler and Larry N. George (Lawrence: University Press of Kansas, 1996), 164. 35. Ibid., 165, 168–71. 36. National War Powers Commission Report, July 8, 2008, http://millercenter. org/dev/ci/system/application/views/_newwebsite/policy/commissions/warpowers/ report.pdf. 37. A concurrent resolution is a measure passed by both the House of Representatives and the Senate but that is not presented to the president to be signed or vetoed; thus it does not have the force of law. A joint resolution is presented to the president, and therefore does have the full power of law. See http://www.senate. gov/reference/glossary_term/concurrent_resolution.htm and http://www.senate. gov/reference/glossary_term/joint_resolution.htm. 38. National War Powers Commission Report, 8–9. 39. Bruce W. Jentleson, American Foreign Policy: The Dynamics of Choice in the 21st Century (New York: W.W. Norton, 2007), 54. 40. Koh, “Why the President Almost Always Wins in Foreign Affairs,” 172. 41. Ibid., 165. 42. “Poll: Talk First, Fight Later,” CBS News, January 24, 2003, http://www. cbsnews.com/stories/2003/01/23/opinion/polls/main537739.shtml. 43. “Do You Favor or Oppose the U.S. War in Iraq?” pollingreport.com, http:// www.pollingreport.com/iraq.htm. 44. “Not the ‘Real Vote,’ ” Washington Post, February 17, 2007. 45. “Iraq Vote Signals New, Confrontational Dynamic Between President Bush and U.S. Congress,” International Herald Tribune, February 17, 2007. 46. “United States Policy in Iraq Resolution of 2007,” S.J. Res. 9, http://www. govtrack.us/congress/bill.xpd?bill=sj110–9&tab=summary. 47. “Senate Democrats Announce Joint Resolution to Transition the Mission in Iraq,” Democrats.Senate.gov, http://democrats.senate.gov/newsroom/record. cfm?id=270337. 48. H.R. 1591, http://thomas.loc.gov/cgi-bin/bdquery/z?d110:H.R.1591. 49. H.R. 1591, Sec. 1904. 50. “Feingold Introduces Bill to End U.S. Military Involvement in Iraq,” April 10, 2007, http://feingold.senate.gov/~feingold/releases/07/04/20070410.html. 51. “Warner-Lugar Amendment on Iraq Senate Amendment Number 2208 to HR 1585, the National Defense Authorization Act,” July 13, 2007, http://warner.sen ate.gov/public/index.cfm?FuseAction=PressRoom.StatementsSpeeches&Content Record_id=b22a2cb6–7e9c-9af9–7e69–7e80cdb4c6e3&Region_id=&Issue_id=. 52. “Responsible Redeployment from Iraq Act,” H.R. 2956, http://thomas.loc. gov/cgi-bin/bdquery/z?d110:h.r.02956:. 53. U.S. Senate Roll Call Votes, 110th Congress, 1st Session. Senate Amendment 2087 to Senate Amendment 2011 to House Resolution 1585, http://www. senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110 &session=1&vote=00252. 54. U.S. Senate Roll Call Votes, 110th Congress, 1st Session. Senate Amendment 2012 to Senate Amendment 2011 to House Resolution 1585, http://www.

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senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110 &session=1&vote=00241. 55. U.S. Senate Roll Call Votes, 110th Congress, 1st. Session. Senate Amendment 2032 to Senate Amendment 2011 to House Resolution 1585, http://www.senate. gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&session= 1&vote=00243. 56. “Orderly and Responsible Iraq Redeployment Appropriations Act,” H.R. 4156, http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.04156:. 57. Hamdan v. Rumsfeld 126 S. Ct. 2749, 2997 (2006). 58. Alexander Hamilton, John Jay, and James Madison, The Federalist Papers, ed. Clinton Rossiter (New York: Mentor Books, 1961), 418 and 447. 59. United States v. Sweeny, 157 U.S. 281 (1895). 60. Louis Henkin, Foreign Affairs and the U.S. Constitution (New York: Oxford University Press, 1996), 46. 61. Note that here I am discussing the question of whether Congress can interfere with a presidential decision to deploy the armed forces of the United States to a particular and duly authorized theater of battle. The question of whether Congress can revoke an authorization or whether the president can act without such authorization will be examined in the following section. 62. David B. Rivkin, Jr., and Lee A. Casey, “Constitutional Warp,” Wall Street Journal, January 31, 2007. 63. Fleming v. Page, 50 U.S. 614–615 (1851). 64. Ex Parte Milligan, 71 U.S. 2 (1866). 65. Jeffrey Rosen, “In Wartime, Who Has the Power?” New York Times, March 4, 2007. 66. Noah Feldman, “Whose War Powers?” New York Times, February 4, 2007. 67. “On to the Hard Part on Iraq,” New York Times, February 17, 2007. 68. Ibid. 69. “Not the Real Vote,” Washington Post, February 17, 2007. See also Rich Lowry, “The Coming Constitutional Crisis,” February 20, 2007, http://www.town hall.com/columnists/RichLowry/2007/02/20/the_coming_constitutional_crisis. 70. Henkin, Foreign Affairs and the U.S. Constitution, 115. 71. The following section will discuss the possibility and implications of Congress revoking the legislation it passed to authorize the Iraq war. 72. Walter Dellinger, “Placing of United States Armed Forces Under United Nations Operational or Tactical Control,” United States Department of Justice, Office of Legal Counsel, May 8, 1996, 1, http://www.usdoj.gov/olc/hr3308.htm. 73. Ibid., 5. 74. “Party Divisions of the House of Representatives (1789 to Present),” Office of the Clerk, United States House of Representatives, http://clerk.house.gov/ art_history/house_history/partyDiv.html. 75. “Party Division in the Senate, 1789-Present,” Senate Historical Office, United States Senate, http://www.senate.gov/pagelayout/history/one_item_and_ teasers/partydiv.htm.

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76. W. Taylor Reveley III, War Powers of the President and Congress: Who Holds the Arrows and Olive Branch? (Charlottesville: University Press of Virginia, 1981), 134. 77. Sundquist, The Decline and Resurgence of Congress, 441. Emphasis in original. 78. Ibid. 79. Louis Fisher and Ryan Hendrickson, “Letter to the Editor Re: Congress at War,” Foreign Affairs (May/June 2008): 168–69. 80. Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: W. W. Norton, 2007), 134. 81. While the Civil War was not declared to be a war by Congress in a formal declaration, as the Prize Cases make clear the legislation passed by Congress to authorize President Lincoln to use force against the Confederacy gave the president broad authority to use force to determine how to enforce the laws of the Union. See Stevenson, Congress at War, 17. 82. Goldsmith, The Terror Presidency, 135. 83. Ibid., 139. 84. Stevenson, Congress at War, 5. 85. William G. Howell and Jon C. Pevehouse, While Dangers Gather: Congressional Checks on Presidential War Powers (Princeton, NJ: Princeton University Press, 2007), 222. 86. “Authorization for the Use of Military Force Against Iraq Resolution of 2002,” Public Law 107–243, October 16, 2002, http://frwebgate.access.gpo.gov/ cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ243.107. 87. Fisher, Presidential War Power, 228. 88. “U.S. Democrats Challenge Bush’s Authority on Iraq War,” Iraqi News, February 19, 2007, http://www.iraqinews.com/international-relations/us-democratschallenge-bushs-authority-on-iraq-war.html?Itemid=126. 89. Ibid. 90. “Letter to Congressional Leaders Reporting on Commencement of Military Operations Against Iraq, Weekly Compilation of Presidential Documents 39, March 21, 2003, 348–9, http://frwebgate.access.gpo.gov/cgi-bin/getdoc. cgi?dbname=2003_presidential_documents&docid=pd24mr03_txt-24. 91. John Yoo, “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them,” Office of Legal Counsel, United States Department of Justice, September 25, 2001, 1. 92. Ibid., 5. 93. Gonzales, “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” Office of the Attorney General, United States Department of Justice, January 24, 2006, 1 and 9, www.USDoj.gov/ ag/speeches/2006/ag_speech_0601241.html. 94. H. L. Pohlman, Terrorism and the Constitution: The Post-9/11 Cases (Lanham, MD: Rowman and Littlefield, 2008), 270. 95. Charles Krauthammer, “No Way to End a War,” Washington Post, February 3, 2007.

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CHAPTER 4: DOMESTIC WARRANTLESS SURVEILLANCE BY THE NATIONAL SECURITY AGENCY 1. James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers Without Courts,” The New York Times, December 16, 2005. 2. “Poll Finds U.S. Split Over Eavesdropping,” CNN.com, January 11, 2006, http://www.cnn.com/2006/POLITICS/01/11/poll.wiretaps/index.html. 3. “The NSA Program to Detect and Prevent Terrorist Attacks: Myth v. Reality,” Office of Public Affairs, U.S. Department of Justice, January 27, 2006, http:// www.usdoj.gov/opa/documents/nsa_myth_v_reality.pdf. 4. Larry Abramson, “Q&A: The NSA’s Domestic Eavesdropping Program,” National Public Radio Online, May 17, 2006, http://www.npr.org/templates/story/ story.php?storyId=5187738. 5. Alberto R. Gonzales, “Legal Authorities Supporting the Activities of the National Security Agency Described By The President,” Office of the Attorney General, United States Department of Justice. January 19, 2006, 2, http://www. usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf. 6. Alberto R. Gonzales, “Intercepting al Qaeda: A Lawful and Necessary Tool for Protecting America,” Office of the Attorney General, United States Department of Justice, January 24, 2006, 5–6, www.USDoj.gov/g/speeches/2006/ as_speech+0601241.html. 7. George W. Bush, “Remarks By the President of the United States at the National Security Agency,” The White House, January 25, 2006, http://www.white house.gov/news/releases/2006/01/20060125–1.html. 8. Gonzales, “Intercepting al Qaeda: A Lawful and Necessary Tool for Protecting America,” 7. 9. Stone, “King George’s Constitution,” University of Chicago Law School Faculty Blog, January 2, 2006, http://uchicagolaw.typepad.com/faculty/2006/01/ bushs_spy_progr.html. 10. Richard A. Epstein, “Executive Power on Steroids,” The Wall Street Journal, February 13, 2006. 11. Stephen I. Vladeck, “The Inherent Power ‘Debate,’” Prawfsblog, December 20, 2005, http://prawfsblawg.blogs.com/prawfsblawg/2005/12/the_inherent_po.html. 12. Curtis A. Bradley et al., “Why the NSA Surveillance Program is Unlawful,” University of Chicago Law School Faculty Blog, January 9, 2005, http:// uchicagolaw.typepad.com/faculty/2006/01/why_the_nsa_sur.html. 13. Elizabeth B. Bazan and Jennifer K. Elsea, “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information,” Congressional Research Service Memorandum, January 5, 2006, http://fpc. state.gov/fpc/58832.htm. 14. Charlie Savage, “Judge’s Ruling Bars Warrantless Wiretaps,” Boston Globe, August 18, 2006. 15. Adam Liptak, “Experts Fault Reasoning in Surveillance Decision,” New York Times, August 19, 2006.

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16. Adam Liptak, “Appeals Court Rejects Lawsuit on Surveillance,” New York Times, July 6, 2007. The case was rejected because “the plaintiffs, including lawyers and journalists, could not show injury direct and concrete enough to allow them to have standing to sue.” 17. Scott Shane, “White House Retreats Under Pressure,” New York Times, January 18, 2007. See also Eric Lichtblau and David Johnston, “Court to Oversee U.S. Wiretapping in Terror Cases,” New York Times, January 18, 2007. 18. According to the New York Times, “the [new surveillance] law creates a new seven-day period for directing wiretaps at foreigners without a court order in ‘exigent’ circumstances if government officials assert that important national security information would be lost. The law also expands to seven days, from three, the period for emergency wiretaps on Americans without a court order if the attorney general certifies there is probable cause to believe the target is linked to terrorism.” It did also assert that FISA, the rules of which were amended by this law, was the “exclusive” means of conducing domestic surveillance See Eric Lichtblau, “Senate Approves Bill to Broaden Wiretap Powers,” New York Times, July 10, 2008. 19. Shane, “White House Retreats Under Pressure,” 2. 20. Ibid. 21. Gonzales, “Legal Authorities Supporting the Activities of the National Security Agency Described By The President,” 1. 22. Ibid., 11. Emphasis in original. 23. Ibid., 12. 24. Curtis A. Bradley and Jack L. Goldsmith, “Congressional Authorization and the War on Terrorism,” Harvard Law Review 118 (2005), 2092. 25. Andrew C. McCarthy, “How to ‘Connect the Dots,’ ” National Review, January 30 (2006): 39. 26. John Yoo, War by Other Means: An Insider’s View of the War on Terror (New York: Atlantic Monthly Press, 2006), 113. 27. Ibid. 28. Gonzales, “Legal Authorities Supporting the Activities of the National Security Agency Described By The President,” 14. 29. Ibid. Quoting Morris Greenspan, The Modern Law of Land Warfare (Berkeley: University of California Press, 1959), 325. Emphasis added in Gonzales. 30. Ibid., 16. 31. Ibid. 32. Ibid., 17. 33. Ibid., 17–18. 34. United States Code 50, Sec. 1089 (a)(1). 35. Gonzales, “Legal Authorities Supporting the Activities of the National Security Agency Described By The President,” 20. Emphasis in original. 36. Ibid., 24–25. 37. Ibid., 26. Emphases in original. 38. Ibid., 6. 39. John Schmidt, “President Had Legal Authority to OK Taps,” Chicago Tribune, December 21, 2005.

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40. Robert F. Turner, “The Surveillance Law That Matters,” Wall Street Journal, October 24, 2007. Turner was referring to Judge Michael Mukasey who was nominated, and eventually confirmed, to replace Alberto Gonzales. The point still stands. 41. The Foreign Intelligence Surveillance Court of Review was established by the FISA legislation and is made up of “seven federal district court judges to review applications for warrants related to national security investigations.” Please see http://www.fjc.gov/history/home.nsf/page/fisc_bdy!OpenDocument&Click=. 42. John C. Eastman, “The Constitutionality of the NSA Surveillance Program: A Letter to the House Judiciary Committee,” January 27, 2006, 5, http:// papers.ssrn.com/sol3/papers.cfm?abstract_id= 926000. 43. McCarthy, “How to ‘Connect the Dots,’ ” 38. Note that the Supreme Court did not decide that electronic surveillance for national security purposes was or was not exempted from the warrant requirement of the Fourth Amendment; it simply ruled that the decision did not cover domestic surveillance for reasons of national security. 44. Ibid. Emphases added by McCarthy. 45. Gonzales, “Legal Authorities Supporting the Activities of the National Security Agency Described By The President,” 6. 46. Ibid., 7. 47. Ibid., 8. Citing In re: Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002). Emphasis added by Gonzales. 48. Ibid. Emphasis in original. 49. Ibid., 9. 50. Ibid., 9–10. 51. Ibid., 25. 52. Gonzales, “Legal Authorities Supporting the Activities of the National Security Agency Described By The President,” 15–16. Citing Bruce W. Bidwell, History of the Military Intelligence Division, Department of the Army General Staff: 1775–1941 (Frederick, MD: University Publications of America, 1986), 165. 53. Yoo, War by Other Means, 113. 54. Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004). 55. Ibid. 56. Audrey Kurth Cronin, “Rethinking Sovereignty: American Strategy in the Age of Terror,” Survival 44, no. 2 (Summer 2002): 134, 119. 57. Philip Bobbitt, Terror and Consent: The Wars for the Twenty-First Century (New York: Knopf, 2008), 183. Emphasis in original. 58. Ibid., 273–74. 59. Audrey Kurth Cronin, “Al Qaeda after the Iraq Conflict,” Congressional Research Service Report for Congress, May 23, 2003, http://www.law.umaryland. edu/marshall/crsreports/crsdocuments/RS21529_05232003.pdf. 60. Douglas Frantz, Josh Meyer, Sebastian Rotella, and Megan K. Stack, “The New Face of al Qaeda,” Los Angeles Times, September 26, 2004. 61. Curtis A. Bradley et al., “Second Letter to Congress,” February 2, 2006, 9, http://www.law.duke.edu/publiclaw/pdf/second_letter.pdf.

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62. The authors argue elsewhere in the letter that the NSA program cannot be understood to have been authorized by the AUMF or under FISA itself, thus making the program a violation of the FISA statute. We shall consider this argument below. 63. Bradley et al., “Second Letter,” 10. Emphasis in original. 64. As we saw in chapter 2, Brown v. United States established that, during the War of 1812 which was formally declared by Congress, the president could not seize the property of an enemy alien if the property had no military value. Little v. Barreme, which was also discussed in chapter 2, also supports this argument, as the Supreme Court ruled that while Congress had authorized the seizure of ships going to France, it had not authorized the seizure of ships coming from France, and therefore the president could not take such an action. And, in Youngstown Sheet & Tube v. Sawyer, the Court struck down an action claimed by the president to be essential for the war effort, but that was disapproved, albeit implicitly, by Congress. 65. Bradley et al., “Second Letter,” 5. Emphasis in original. 66. Geoffrey R. Stone, “Bush’s Spy Program and the Fourth Amendment,” University of Chicago Law School Faculty Blog, January 2, 2006, http://uchica golaw.typepad.com/faculty/2006/01/bushs_spy_progr.html. 67. Yoo, War by Other Means, 119–20. 68. Ibid., 120. 69. Suzanne E. Spaulding, “Power Play: Did Bush Roll Past the Legal Stop Signs?” Washington Post, December 25, 2005. 70. Michael J. Sniffen, “Judge Criticizes Warrantless Wiretaps,” Washington Post, June 23, 2007. 71. Lichtblau and Johnston, “Court to Oversee U.S. Wiretapping in Terror Cases.” 72. Bradley et al., “Why the NSA Surveillance Program is Unlawful.” 73. Youngstown Sheet & Tube Co. v. Sawyer, 635. 74. Ibid. 75. Bazan and Elsea, “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information,” 44. 76. Bradley et al., “Why the NSA Surveillance Program is Unlawful.” 77. Bobbitt, Terror and Consent, 272. 78. Ibid., 270. 79. Gonzales, “Legal Authorities Supporting the Activities of the National Security Agency Described By The President,” 11. 80. Yoo, The Powers of War and Peace, 151–52. 81. Yoo argues that the AUMF passed by Congress in 2001 was “if not a declaration of war in name, a declaration of war in purpose.” Yoo, War by Other Means, 11. 82. Authorization for the Use of Military Force, Public Law 107–40 [S. J. RES. 23], September 18, 2001, http://news.findlaw.com/wp/docs/terrorism/sjres23.es. html. 83. Eastman, “The Constitutionality of the NSA Surveillance Program,” 3.

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84. Gonzales, “Intercepting al Qaeda,” 2. 85. Yoo, War by Other Means, 115–16. 86. Tom Daschle, “Power We Didn’t Grant,” Washington Post, December 23, 2005. 87. The relevant passage of the AUMF would have read, if the proposed language had been accepted, as follows: “the President is authorized to use all necessary and appropriate force in the United States and against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons” (emphasis added). Such language would, seemingly, have granted President Bush the broad power he claimed in the debate over the NSA program. 88. Yoo, War by Other Means, 116. 89. A “straw man” argument is one in which an opponent’s argument is misrepresented so as to make it easier to disprove, refute, or challenge. 90. Whitfield Diffie and Susan Landau, Privacy on the Line: The Politics of Wiretapping and Encryption (Cambridge, MA: MIT Press, 2007), 143. 91. Greg Miller, “U.S. Tapped Intimate Calls from Americans Overseas, 2 Eavesdroppers Say,” Los Angeles Times, October 10, 2008. 92. Ibid. 93. Scott Shane, “Panel to Study Military Eavesdropping,” New York Times, October 10, 2008. 94. Barton Gellman, “Conflict Over Spying Led White House to the Brink,” Washington Post, September 14, 2008. 95. Richard A. Posner, “Wire Trap,” The New Republic Online, January 26, 2006, http://209.212.93.14/doc.mhtml?i=20060206&s=posner020606.

CHAPTER 5: THE DETENTION AND TRIALS OF SUSPECTED TERRORISTS 1. William Glaberson, “Evidence Faulted in Detainee Case,” New York Times, July 1, 2008. 2. Parhat v. Gates, United States District Court, District of Columbia, June 20, 2008, 3. 3. Ibid., 28. 4. Benjamin Wittes, Law and the Long War: The Future of Justice in the Age of Terror (New York: The Penguin Press, 2008), 15. 5. “Skirmishing Over Detainees,” New York Times, June 13, 2008. 6. “Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval Stations,” February 23, 1903, http://avalon.law.yale. edu/20th_century/dip_cuba002.asp. 7. “Six-Year History of Actions on Detainees,” New York Times, December 2, 2007. 8. These decisions will be examined in greater analytic detail later in this chapter.

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9. “Military Order of Nov. 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism,” http://www.defenselink.mil/ news/Mar2002/d20020321ord.pdf. 10. “Six-Year History of Actions on Detainees.” 11. “Gitmo: A National Disgrace,” New York Times, June 6, 2007. 12. Jordan A. Paust, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror (New York: Oxford University Press, 2007), 84–85. 13. Cass R. Sunstein, “Congressional Record: The Court’s Stunning Hamdan Decision,” The New Republic Online, June 30, 2006, http://209.212.93.14/show Bio.mhtml?pid=90&sa=1. 14. “The Justices’ Refrain,” Washington Post, June 13, 2008. See also “Supreme Court Blots a Stain,” Philadelphia Inquirer, June 13, 2008. 15. “President Kennedy,” Wall Street Journal, June 13, 2008. 16. John Yoo, “The High Court’s Hamdan Power Grab,” Los Angeles Times, July 7, 2006. 17. David B. Rivkin, Jr. and Lee A. Casey, “Bush’s Good Day in Court,” Washington Post, August 4, 2004. 18. Seth P. Waxman, “The Combatant Detention Trilogy Through the Lenses of History,” in Terrorism, the Laws of War, and the Constitution: Debating the Enemy Combatant Cases, ed. Peter Berkowitz (Stanford, CA: Hoover Institution Press, 2005), 2. 19. Ibid., 19. Emphasis in original. 20. Hamdi v. Rumsfeld, 2641. 21. John Yoo, “Enemy Combatants and the Problem of Judicial Competence,” in Terrorism, the Laws of War, and the Constitution: Debating the Enemy Combatant Cases, ed. Peter Berkowitz (Stanford, CA: Hoover Institution Press, 2005), 74. 22. John Yoo, “Five Wrong Justices,” USA Today, June 30, 2006. 23. Wittes, Law and the Long War, 13. 24. Ibid., 13–14. 25. Johnson v. Eisentrager, 339 U.S. 763 (1950). 26. Ibid., 779. 27. Yoo, “Enemy Combatants and the Problem of Judicial Competence,” 83. 28. Ibid., 86. 29. Ibid., 83. 30. H. L. Pohlman, Terrorism and the Constitution: The Post-9/11 Cases (Lanham, MD: Rowman and Littlefield, 2008), 155. 31. Bas v. Tingy, 4 U.S. (4 Dall.) 40 (1800). 32. John Yoo, War by Other Means: An Insider’s Account of the War on Terror (New York: Atlantic Monthly Press, 2006), 130. 33. Pohlman, Terrorism and the Constitution, 179. 34. Ibid. 35. Hamdi v. Rumsfeld, 2641. Two of the three dissenting justices—Scalia and Stevens—argued that the AUMF could not be read under the Constitution as a suspension of habeas corpus and thus Hamdi, as a U.S. citizen, should be subjected to the traditional criminal process.

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36. Wittes, Law and the Long War, 107. 37. “Military Order of Nov. 13, 2001.” 38. Pohlman, Terrorism and the Constitution, 252. 39. Ibid., 269. 40. Ibid., 270. The administration also made several arguments about the inapplicability of the Geneva Conventions that, while interesting and important, are not particularly germane to the argument here. 41. Ibid., 286. 42. Hamdan v. Rumsfeld, 548 U.S. 27, 29 (2006). 43. Ibid., 29–30. 44. Ibid., 30. 45. Article 36 of the Uniform Code of Military Justice is titled “President may prescribe rules,” and is contained within subchapter VII (“Trial Procedure”). See http://www.au.af.mil/au/awc/awcgate/ucmj.htm#SUBCHAPTER%20VII.%20 TRIAL%20PROCEDURE. 46. Pohlman, Terrorism and the Constitution, 258. 47. Hamdan v. Rumsfeld, 59 and 60. 48. Ibid., 60–61. 49. Ibid., 1. 50. Ibid. 51. Yoo, “Enemy Combatants and the Problem of Judicial Competence,” 69. 52. Waxman, “The Combatant Detention Trilogy Through the Lenses of History,” 31. 53. Patricia M. Wald, “The Supreme Court Goes to War,” in Terrorism, the Laws of War, and the Constitution: Debating the Enemy Combatant Cases, ed. Peter Berkowitz (Stanford, CA: Hoover Institution Press, 2005), 40–41. Emphasis in original. 54. The Boumediene case examined the Detainee Treatment Act’s provision that precluded habeas corpus petitions from individuals detained in Guantánamo Bay while providing for exclusive review of the determinations of Combatant Status Review Tribunals in the U.S. Court of Appeals for the District of Columbia Circuit. The Court ruled that the DTA’s provisions both constituted an illegal suspension of the writ of habeas corpus and that the CSRT review process was an inadequate substitute for normal habeas proceedings. The fact that the Supreme Court struck down a law that had been implemented by Congress at the request of the president demonstrates that consultation does not guarantee a constitutionally sound policy. 55. Wittes, Law and the Long War, 11. 56. Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: W. W. Norton, 2007), 126. 57. Ibid., 11. 58. Korematsu v. United States, 323 U.S. 214 (1944), 223. Note that, in the words of Justice Black, who wrote the majority opinion, “the petitioner, an American citizen of Japanese descent, was convicted in a federal district court for

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remaining in San Leandro, California, a ‘Military Area,’ contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area.” Furthermore, “Exclusion Order No. 34, which the petitioner knowingly and admittedly violated, was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed. Reg. 1407. That order, issued after we were at war with Japan, declared that ‘the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities.’ ” 59. Wittes, Law and the Long War, 48. 60. Ibid., 260.

CHAPTER 6: RESTORING THE BALANCE 1. Gerald R. Ford, “The War Powers Resolution: Striking a Balance Between the Executive and Legislative Branches,” John Sherman Cooper Lecture, the University of Kentucky at Louisville, April 11, 1977, http://www.ford.utexas.edu/ LIBRARY/speeches/770411.htm. 2. Alexander Hamilton, John Jay, and James Madison, The Federalist Papers, ed. Clinton Rossiter (New York: Mentor Books, 1961), 322. 3. Jonathan Mahler, “After the Imperial Presidency,” New York Times, November 9, 2008. 4. For information on the extraordinary rendition program, please see http:// www.pbs.org/frontlineworld/stories/rendition701/. 5. Mahler, “After the Imperial Presidency.” 6. For example, Republicans very much opposed the use of force in Kosovo by President Clinton, while Democrats were strongly united in opposition to the use of force in Iraq by President Bush. 61 percent of House Democrats voted against the 2002 AUMF that authorized the Iraq war as did 42 percent of Democratic Senators. In 1999, the House voted 213–213 not to pass a resolution supporting the NATO airstrikes against Serbia, with 85 percent of Republicans opposing the measure. See http://www.cnn.com/US/9903/23/us.kosovo.06/, http://www.pbs. org/newshour/bb/congress/jan-june99/votes_4–29.html, http://www.senate.gov/ legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=107&vote=00237 &session=2, and http://clerk.house.gov/evs/2002/roll455.xml. 7. Mahler, “After the Imperial Presidency.” 8. Ibid. 9. Quoted in James L. Sundquist, The Decline and Resurgence of Congress (Washington, DC: Brookings Institution Press, 1981), 120. 10. Benson Bobrick, Angel in the Whirlwind: The Triumph of the American Revolution (New York: Penguin Books, 1997), 479–80. 11. Livy, The Early History of Rome (New York: Penguin, 1971), 124–25. 12. Ibid., 213–16.

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INDEX

ACLU. See American Civil Liberties Union ACLU v. National Security Agency, 31, 86 Adams, John, 39, 55, 101 Addington, David, 18, 128 Adler, David Gray, 23–24, 26, 37 Afghanistan: 1998 U.S. involvement, 3; U.S. war in, 1, 5, 14, 18, 21, 33, 51, 53, 57, 94 –95, 97, 122, 143 n.28 Alien Enemy Act, 44 American Civil Liberties Union, 18, 86 American Revolutionary War, 94 Angola, 40, 59, 77 Appropriations, 3; as authorization of military force, 35, 58 –59, 61, 63; as check on presidential war powers, 13, 28, 40, 49, 56, 58 – 61, 68 –70, 73, 77, 151 n.8; historical uses of, 40, 58 – 60, 70, 73; limits to, 60 – 61, 72–74. See also U.S. Congress Al Qaeda, 8, 13, 14, 21, 33, 51, 78 –79, 83– 84, 87, 96, 105, 111,

113, 114, 122; structure of, 20, 97; threat posed by, 16, 20, 29, 32, 88, 98, 109, 118 –19, 136 –37 Atlee v. Laird, 58 AUMF. See Authorizations for the Use of Military Force Authorization for the Use of Military Force (AUMF), 19, 35, 48; as authorization for detention and trial of suspected terrorists, 19, 48, 50, 118, 121–22, 124 –26; as authorization for surveillance, 19, 31, 50, 83– 85, 87, 89–90, 92–93, 102–7; congressional efforts to revoke, 78 – 80; congressional intentions in passing, 49–50, 106 –7, 160 n.87; effects of, 29, 50, 121–22, 125, 146 n.23; for Afghanistan (September 18, 2001), 29, 49, 83– 85, 102, 104, 113, 130; for Iraq (October 16, 2002), 49–50, 66, 72, 78 – 80; limits to, 45, 48 –50, 113, 116 –17, 122–23, 126 Authorizations of force, 57–59; constitutionality of, 57; effects of, 41, 45; historical use of, 7, 39,

174

INDEX

41, 55 –57, 150 n.115. See also Mitchell v. Laird Baker, James A., 64 Baker v. Carr, 8 Balanced theory of war powers, 6, 12, 25, 30, 52, 54, 76, 86 – 87, 92–93, 103– 4, 112–13, 116 –18, 120 –21, 123–24, 126, 129–31; as distinct from narrow theory, 30 –36, 47–52; need for, 6, 15 –16, 34 –36, 47, 66, 74, 81, 108, 134 –39 Balance of power (between president and Congress), 4, 9, 10, 32, 47, 52, 66, 81, 91, 100, 112, 120, 127, 131; Framers’ intent, 2, 5, 96, 133–34; shift in, 3, 7, 11, 134 –36; threats to, 2, 4, 5, 32, 102, 103, 134 –36 Barbary pirates, 26 –27, 55 Bas v. Tingy, 40 – 41, 44, 122 Bell, Griffen, 90 Biddle, Francis, 19 Biden, Joseph, 78 Bill of Rights, 96, 102; Fourth Amendment, 85 – 86, 91–92, 96, 97–98, 130; Fifth Amendment, 130; Sixth Amendment, 130 Bin Laden, Osama, 20, 124 Black, Hugo, 42– 43, 162– 63 n.58 Blount, William, 26 Bobbitt, Philip, 95, 101, 145 n.6 Bosnia, U.S. intervention in, 3, 28, 61; congressional efforts to stop, 56 Boumediene v. Bush, 31, 46, 51, 76, 115 –16, 128, 137, 150 n.117, 162 n.54 Breyer, Stephen, 126 Brown v. United States, 48, 150 –51 n.123, 159 n.64 Bush, George W., 29, 34, 68 – 69, 106, 163 n.6; criticisms of policies of, 5, 18, 76 –77, 95, 115, 145 n.6; efforts to expand executive power by, 4, 10 –11, 79– 80; and the detention and trial of suspected terrorists, 48, 114, 115 –16, 118, 124, 127–28;

on the inherent power of the president, 10, 18; on the nature of the threat of international terrorism, 7, 20, 33; setbacks in the war on terrorism, 25, 31, 40, 77, 86, 100, 125, 127, 129; and warrantless wiretapping, 2, 13, 83– 85, 96, 100, 101–2, 104 –9, 134 Butler, Pierce, 23 Cambodia, 28, 40, 59, 70 Casey, Lee, 61, 71, 116 Central Intelligence Agency, 59, 88 Chase, Salmon P., 41, 71 Checks and balances, 3, 5, 9; threats to, 11, 138 Cheney, Richard, 128 Christopher, Warren, 64 Cincinnatus, Lucius Quinctius, 138 –39 Civil liberties, 9, 11–12, 15, 19, 23, 46 – 47, 66, 76, 80 – 81, 102, 107– 8, 112–13, 115, 127, 130; and national security, 17–18, 117, 136 Civil War, 41, 46, 88, 94; and declaration of war, 41, 76, 155 n.81; presidential powers in, 41, 76; suspension of habeas corpus in, 10, 19 Clausewitz, Carl von, 44 Clinton, William, 40, 56, 59, 73, 134, 151 n.8, 152 n.27, 163 n.6 Cold War, 96, 134 –35 Combatant Status Review Tribunals (CSRTs), 114 –15, 150 n.117, 162 n.54 Commander in chief power, 4, 5, 14, 19, 22, 34, 38, 42– 43, 48, 53, 80, 102; as authority for surveillance power, 50, 83, 85, 87, 96; as authority for the deployment of troops and the initiation of hostilities, 62– 63, 71; as authority for the trial and detention of suspected terrorists, 30, 50; constitutional meaning of, 26 –27, 36 –37, 71, 99

INDEX Committee of Detail, 23 Congress. See U.S. Congress. Congressional Research Service, 42, 67, 86, 101 Constitutional Convention, 23–24 Contra rebels, 40, 77. See also Nicaragua Cowan, Edgar, 46 Cronin, Audrey Kurth, 95 CSRT. See Combatant Status Review Tribunal Curtiss-Wright. See United States v. Curtiss-Wright Export Corp Daschle, Tom, 106 –7 Declaration of war, 7, 20, 39, 43– 47, 49, 52, 63, 105, 107, 116; as check on executive power, 20, 21–22, 24, 129–30; effects of, 10, 12, 20, 35, 41– 42, 44 – 48, 54, 106, 109, 121–22, 129, 136; historical use of, 7, 24, 32, 37, 39– 40, 45, 55, 150 nn.115, 116; legal status of enemies, 41, 121, 123 Declare war clause (of the U.S. Constitution), 7, 10, 21, 22, 36, 79, 103– 4, 123–24, 144 n.40; broad interpretation of, 22, 23–28, 63; constitutional meaning of, 19, 20, 22, 23–25, 28, 36 – 43, 54, 105; Framers’ understanding of, 20, 23–25, 28, 31, 35, 37, 54; historical meaning of, 23, 24 –26; narrow interpretation of, 22, 28 –36, 39, 47–52, 54 Delahunty, Robert, 25, 26 –27, 63 Dellinger, Walter, 73 Deployment of troops, 13, 35, 39, 46, 53, 77; congressional efforts to block or end, 59, 67–74; instances of, 3, 28, 143 nn.27, 28; power of, 10, 12–13, 22, 29, 63, 71; without explicit congressional authorization, 56. See also Executive power, to deploy troops

175

Detainee Treatment Act, 111–12, 114, 124 –25, 150 n.117, 162 n.54 Detention of suspected terrorists, 10, 12, 14, 25, 33, 34, 76, 111–12, 114 –17, 120 –24; as fundamental incident of war, 30, 50; legal decisions regarding, 14, 31, 112, 114–16, 123–24, 130; presidential power and, 14, 15, 29–30, 48, 80, 127 Distribution of power, 2, 15, 36, 63, 78. See also Balance of power DTA. See Detainee Treatment Act Earth Liberation Front, as domestic threat, 96 Eastman, John C., 47, 91, 101, 105 Epstein, Richard, 85 Espionage Act, 19 Executive power, 10, 11, 15, 16, 18, 34 –35, 42, 137; to conduct surveillance, 4, 10, 13–14, 19, 29–30, 31, 43, 80, 84 – 87, 90 –93, 96, 98 –99, 100, 102; constitutional “gloss” on, 62– 63; constitutionality of, 4, 18 –19, 79– 80; to convene military tribunals, 4, 10, 14, 19, 29–30, 43, 80; definition of, 37–39; to deploy troops, 10, 13, 15, 19, 22, 23, 26 –28, 29–30, 39, 53, 71, 79, 134; to detain and try suspected terrorists, 14, 29–30, 43, 48, 79, 112, 118; during wartime, 10, 12, 34; expansion of, 3– 4, 19, 76, 90, 108, 109, 128, 134 –35; in foreign relations, 6, 50, 52, 64; inherent nature of, 4, 5, 10, 13–14, 18, 22, 30, 48, 50 –51, 79– 80, 85, 87, 90 –93, 98 –102, 112, 125; legitimacy of, 4, 34, 95; limits of, 23, 24, 46, 127, 159 n.64; policy problems caused by, 6 Ex Parte Milligan, 71 Ex Parte Quirin, 116 The Federalist Papers, 37; Federalist No. 25, 37; Federalist No. 41, 37;

176

INDEX

Federalist No. 47, 11, 38; Federalist No. 51, 2; Federalist No. 70, 38–39; Federalist No. 74, 39 Feingold, Russ, 69–70, 73 Feith, Douglas J., 5 Feldman, Noah, 72 FISA. See Foreign Intelligence Surveillance Act Fisher, Louis, 23, 26, 75, 78, 147 n.61 Ford, Gerald R., 28, 40, 77, 133, 135 Foreign Intelligence Surveillance Act, 31, 44, 83– 86, 89–92, 98, 101, 103, 105, 108 –9, 148 n.77, 157 n.18, 159 n.62; flexibility of, 100; unconstitutionality of, 90 –91 Foreign Intelligence Surveillance Court, 91, 92, 100 Founders. See Framers Framers, 2–3, 12, 13, 22, 23–25, 38, 96, 133–34. See also Declare war clause, Framers’ understanding of; War powers, Framers’ understanding of Frankfurter, Felix, 62– 63 Franklin, Benjamin, 17, 145 n.1 Fulbright, J. William, 64, 137

of the United States., 31, 114, 120 –24, 145 n.6, 162 n. 54; suspension of in Civil War, 10, 19; in the war on terror, 31, 114 –115, 120, 123, 161, n. 35, 162 n.54 Hagel, Chuck, 69, 72 Haiti, U.S. intervention in, 3, 61; congressional attempts to limit, 53, 56 Hamdan, Salim Ahmed, 80, 114 –15, 124 Hamdan v. Rumsfeld, 4, 14, 19, 31, 48, 50, 71, 80, 112–113, 115, 117–18, 120, 124 –27, 129 Hamdi, Yasir, 33, 114, 123, 161 n. 35 Hamdi v. Rumsfeld, 14, 18, 33, 46, 48, 49, 50, 80, 87, 94, 99, 112, 114, 115 –16, 117–18, 119, 122–23, 127, 161 n. 35 Hamilton, Alexander, 11, 36, 38 –39, 71 Healy, Gene, 5 Hendrickson, Ryan, 75 Henkin, Louis, 71, 73 Holtzman v. Schlesinger, 58, 61 Howell, William, 60

Gallatin, Albert, 27 Geneva Conventions, 124, 127, 134, 162 n.40; Common Article 3, 115 Gerry, Elbridge, 24 Glennon, Michael, 23 Goldsmith, Jack, 6, 18, 76 –77, 128 Gonzales, Alberto, 4, 18 –20, 48, 50, 105, 146 n.23; justification for warrantless domestic surveillance, 80, 84, 87–94, 98, 101 Grenada, U.S. invasion of, 3, 39, 44 Guantánamo Bay Naval Base, 31, 114 –16, 120 –24, 134, 162 n.54; and U.S. sovereignty, 51–52, 114 Gulf of Tonkin Resolution, 56

Imperfect war, 44, 122; definition of, 40 – 42; presidential power during, 41– 42. See also War, nature of In re: Sealed Case, 91, 92, 99 International terrorism. See Terrorism Internment (of Japanese-Americans during World War II), 10, 19, 31, 42, 45, 46, 106, 130, 162– 63 n.58 Interrogation, 5, 134 Iran, 3, 24, 28 Iraq, 122; congressional attempts to limit war, 13, 53–54, 67–74, 78 –79, 163 n.6; congressional support for, 66; 1993 U.S. involvement, 3; public opinion of, 65; 2003 U.S. invasion of, 5, 33, 66, 143 n.28, 163 n. 6; U.S. war in, 44, 51, 57, 119

Habeas corpus, 38, 42, 130; applicability to detainees outside

INDEX Israel, 117–18 Issacharoff, Samuel, 72 Jackson, Robert H., 17, 62– 63, 100 –101, 120 Jefferson, Thomas: campaign against Barbary pirates, 26 –27, 55; understanding of war powers, 26 –27 Johnson, Lyndon Baines, 40 Johnson v. Eisentrager, 120; applicability to war on terror, 121–22 Judicial branch, as check on executive branch, 6, 8 –9, 15 –16, 31, 34, 76, 127, 129, 137 Katz v. United States, 91 The Keith Case. See United States v. United States District Court KGB, as foreign threat, 96 Kleinerman, Benjamin, 8 Knox, Henry, 26 Koh, Harold Hongju, 23, 64 – 65 Korean War, 7, 23, 27, 39, 41– 42, 44, 56 –57, 61, 107, 134, 141 n.2 Kosovo: congressional attempts to stop U.S. intervention, 53, 152 n.27, 163 n.6; NATO intervention in, 3, 7, 28, 39, 44, 56, 61, 103, 134 Krauthammer, Charles, 80 Lamberth, Royce, 100 Laos, 40, 59, 77 Lebanon, U.S. intervention in, 3, 55, 143 n.28 Legal Authorities Supporting the Activities of the National Security Agency Described by the President (memorandum from Department of Justice), 84, 87–93, 98 Legislative power, 9, 11, 15, 16, 34 –35, 42– 43, 49, 51, 52, 108 –9, 118, 124, 126, 129, 137, 139; and surveillance, 86, 93–102; definition

177

of, 37–38; transfer of by Congress to the president, 10, 12, 21–22, 35, 45, 50, 77, 93, 104 – 6, 113, 121, 123, 129 Levin, Carl, 69, 78 Libya, 3 Limited war, 23. See also War, nature of Lincoln, Abraham, 18, 34, 46, 76, 88, 94, 109, 116, 155 n.81; suspension of habeas corpus by, 19 Little v. Barreme, 48, 55, 159 n.64 Locke, John, 11, 37–38 Madison, James, 2, 11, 24, 38, 39– 40, 55, 133; understanding of war powers, 26 –27 Mayaguez incident, 27–28 MCA. See Military Commissions Act of 2006 McCarthy, Andrew, 91 McKinley, William, 39– 40 Mexican-American War, 71 Military commissions (tribunals), 10, 12, 14, 31, 114 –15, 122; as fundamental incident of war, 80; presidential power to convene, 4, 25, 29–30, 50, 80, 124 –27 Military Commissions Act of 2006, 77, 115, 137, 150 n.117 Mitchell v. Laird, 57–58 Mueller, John, 32 Murtha, John, 72 National Security Agency (NSA), warrantless wiretapping by, 2, 4, 13–14, 17, 30, 80, 83– 86, 87, 89, 93, 96 –97, 102–3 National Security Council, 73 The National Security Strategy of the United States, 4 National War Powers Commission, 64 – 66 NATO. See North Atlantic Treaty Organization

178

INDEX

Nelson, Samuel, 41 New York Times, 13, 72, 83, 135 Nicaragua, 39, 40, 59, 77 Nixon, Richard M., 77 Noriega, Manuel, 39 North Atlantic Treaty Organization, 7, 33, 39, 56, 152 n.27 NSA. See National Security Agency O’Connor, Sandra Day, 33, 46, 49–50, 94, 99, 118 –19, 123 Orderly and Responsible Iraq Redeployment Appropriations Act of 2007 (House Resolution 4156), 70 Oren, Michael, 27 Pakistan, 20, 51, 97 Panama, U.S. invasion of, 3, 7, 28, 39, 61, 103 Parhat, Huzifa, 111–12 Parhat v. Gates, 111–12 Paust, Jordan, 4, 115 Perfect war, 44, 122; definition of, 40 – 42; presidential powers in, 41– 42. See also War, nature of Pevehouse, Jon, 60 Philadelphia Inquirer, 115 Philippines, U.S. intervention in, 39, 61 Polk, James, 39 Posner, Richard, 108 Power of the purse. See Appropriations Prakash, Saikrishna, 24 –25, 63 Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information (memorandum from Congressional Research Service), 86 Presidential authority. See Executive power The President’s Constitutional Authority to Conduct Military

Operations Against Terrorists and Nations Supporting Them (memorandum from Department of Justice), 19 Price controls, 20, 22 The Prize Cases, 41, 92, 121, 155 n.81 Public opinion, 8, 18, 65; on domestic surveillance, 17, 83; on the wars in Afghanistan and Iraq, 66 – 67; on the trade-off between civil liberties and national security, 17–18 Quasi War, 48 Rasul v. Bush, 14, 31, 48, 51, 112–18, 120 –25, 127, 129 Rationing, 10, 20, 21, 42, 44, 46, 106 Reagan, Ronald, 40, 59, 77 Reed, Jack, 69 Reid, Harry, 68 Responsible Deployment from Iraq Act (House Resolution 2956), 69 Rivkin, David, 61, 71, 116 Robert, John, 125 Rockefeller, John D., 108 Roosevelt, Franklin Delano, 18, 19, 31, 34, 40, 45, 59, 76, 89, 109, 116, 130. See also Internment Rostow, Eugene, 133 Rwanda, congressional efforts to prevent U.S. intervention in, 59 Schmidt, John, 90 Sensenbrenner, James, 91 Separation of powers, 11–12, 15, 35, 38, 50, 102–3, 107– 8, 115, 120, 124, 133, 137–38 September 11, 2001, 29, 87, 93, 106 – 8, 113, 119, 141 n.2; expansion of executive power as a result of, 3– 4, 29–30, 47– 48, 134, 160 n.87 Serbia, NATO airstrikes against, 39, 56

INDEX Skelton, Ike, 69 Somalia: congressional efforts to end U.S. intervention in, 40, 56, 59, 61, 151 n.8; U.S. intervention in, 3, 7, 28, 39, 61, 134 South Carolina, 1776 and 1778 constitutions of, 25 Spanish-American War, 40, 88, 94, 143 n.27 Spaulding, Suzanne, 99–100 Spaulding v. Douglass Aircraft, 60 Steel Seizure case. See Youngstown Sheet & Tube Co. v. Sawyer Stevens, John Paul, 122, 161 n.35 Stevenson, Charles, 61 Stone, Geoffrey, 4, 85 Stuart, J.E.B., 94 Sudan, 3 Sundquist, James, 75 Supreme Court. See U.S. Supreme Court Surveillance, 21, 106; abuses of, 107– 8; as fundamental incident of war, 30, 50, 84 – 85, 87– 88, 92–93, 94, 96, 107; as legislative power, 93–102; during wartime, 10; historical precedents, 88 – 89, 93, 94, 98, 101; international law, 88; presidential right to conduct, 4, 13–14, 29–30, 31, 80, 86, 87–93, 96, 97, 99, 100, 102; warrantless wiretapping, 4, 10, 12, 13–14, 25, 30, 31, 34, 47, 50, 76, 83– 86, 87–93, 98, 106 –9, 134, 148 n.77 Taliban, 33, 94 –95, 97, 104, 111, 113, 118, 123 Taylor, Anna Diggs, 13–14, 31, 86, 148 n.77 Terminiello v. Chicago, 17 Terrorism, 20, 123; domestic versus international, 51–52, 96 –97, 101–2; threat posed by, 5, 18, 22, 32–33, 50, 95, 117–19 Thailand, 40, 77

179

Total war, 7, 21, 23, 44, 103, 150 n.116. See also War, nature of Trials of suspected terrorists, 4, 10, 12, 14, 25, 34, 111–31; as fundamental incident of war, 4, 30, 50; presidential power and, 15, 29–30, 112, 127. See also Military commissions Tripoli, 26, 55 Truman, Harry, 42, 46, 107, 134 Turner, Robert, 60, 90, 158 n.40 U.S. Congress, 29, 41, 42– 43, 48, 76; appropriations power, 3, 13, 28, 35, 36, 40, 58 – 61, 70, 72–73, 77; as a check on executive power, 2– 6, 8, 13, 15 –16, 20, 21–22, 28, 34 –35, 39– 40, 46, 53, 59– 60, 61, 65 – 66, 71– 81, 85, 104, 136; and the deployment of troops and the initiation of hostilities, 36; and the detention and trial of suspected terrorists, 31, 112, 115; and the power to declare war, 7, 20, 22, 23–25, 28, 35, 39, 43, 45 – 47; efforts to end war in Iraq, 13, 53–54, 67–70, 78 – 80; regulation of domestic surveillance by, 31, 90 –91, 101; reluctance in foreign affairs, 6, 9, 64, 75, 128, 134; in war on terrorism, 9, 34, 49–50, 89–90, 102, 105, 106 –7, 128 –29, 131, 136; weaknesses in foreign affairs, 43, 64, 74 –76, 99. See also Legislative power; War powers U.S. Constitution, 24, 28, 29, 30, 36–38, 42–43, 48, 52, 62, 79–80, 90; Article I, Section 8, 58; Article I, Section 10, 25, 37; Article II, Section 2, 36, 80, 125; Article II, Section 8, 10, 22, 36. See also Bill of Rights; Declare war clause U.S. Court of Appeals for the District of Columbia Circuit, 57, 111, 115, 125, 162 n.54

180

INDEX

U.S. Court of Appeals for the Sixth Circuit, 86, 148 n.77 U.S. Department of Defense, 59, 69, 114 U.S. Department of Homeland Security, 1, 51 U.S. Department of Justice, 84, 100, 101; Office of Legal Counsel, 18, 29, 79 U.S. District Court for the Eastern District of Michigan, 13, 31, 86 U.S. District Court for the Eastern District of Pennsylvania, 58 U.S. House of Representatives, 27, 56, 65 –70, 74 –75, 99, 114, 153 n.37, 163 n.6; Judiciary Committee, 47, 91, 105 U.S. Senate, 3, 38, 66 –70, 74, 78, 80, 90, 99, 106, 108, 153 n.37; Armed Services Committee, 78; Foreign Relations Committee, 69, 78; Intelligence Committee, 33, 108 U.S. Supreme Court, 18, 32, 40 – 41, 48, 130, 137, 144 n.47; as check on executive power, 4, 8, 15 –16, 117–19, 127, 129, 137, 159 n.64; and the deployment of troops, 13, 22, 53, 71; and the detention and trial of suspected terrorists, 14, 31, 80, 94, 112, 114 –15, 118, 122–27, 150 n.117, 162 n.54; and executive power, 5 – 6, 42, 50 –51, 116, 119–20; and warrantless wiretapping, 98, 148, n.77, 158 n.43; Uniform Code of Military Justice, 31, 124 –26; Article 36, 125 –26 United States Policy in Iraq Resolution of 2007 (Senate Joint Resolution 9), 67– 68 United States Troop Readiness, Veterans’ Health, and Iraq Accountability Act of 2007 (House Resolution 1591), 68

United States v. Curtiss-Wright Export Corp., 5 – 6, 50 –51; limits to applicability, 51–52, 101–2 United States v. United States District Court, 91–92, 96 USA PATRIOT Act, 51, 101, 134 Vietnam War, 3, 27, 29, 44, 75, 127; congressional authorization of, 56, 58 –59, 91; congressional efforts to end, 40, 59, 64, 70, 77; legal status of, 57–58, 151 n.15 Villa, Pancho, 94 Vladeck, Stephen, 85 Wald, Patricia, 127–28 Wall Street Journal, 116 War, nature of, 7, 20 –21, 33, 35, 40 – 42, 43– 47, 48 – 49, 122. See also Atlee v. Laird Warner, John, 69, 135 War of 1812, 26, 143 n.27, 159 n.64 War on terror(ism): of Congress, 3, 9, 23, 28, 34 –37, 46, 58, 71–72, 74, 77, 89, 103, 109, 120, 125, 130; domestic aspects, 2, 7, 9–10, 21, 32, 51–52, 96 –97; effect on balance of power, 2, 7, 32–33, 49, 102, 135; indefinite duration of, 4, 9, 20, 21, 33, 81, 119; need for legal architecture for, 9, 81, 120, 129; threat posed by, 18, 32, 95, 117–18, 141– 42 n.2; unique nature of, 1, 7, 20, 21, 32–34, 48 – 49, 52, 94 –95, 108, 117–20, 131, 135, 138 War powers: distribution of, 3, 6, 7, 9, 12, 23, 36–37, 62, 102, 108, 118, 120, 136; Framers’ understanding of, 23–25, 35–39, 60, 93, 105, 130; imbalance of, 7, 16, 63–64, 66, 74, 103, 127–28, 135–36; limits to, 48; of the president, 3–4, 5, 23, 34–36, 42, 46, 48, 71, 87, 90, 95, 103, 104–5, 109, 113, 118, 120, 125, 130

INDEX War Powers Resolution, 3, 13, 61, 75, 133, 152 n.27; proposed alternatives to, 64 – 66; unconstitutionality of, 3, 28, 61, 104, 147 n.61 Warrantless wiretapping. See Surveillance Washington, George, 39, 88, 94, 138; military operations against American Indians, 26 –27; understanding of war powers, 26 Washington Post, 115 Waxman, Seth, 117–18 Weather Underground, as domestic threat, 96 Webb, Jim, 69, 72 Wilson, Woodrow, 19, 34, 39– 40, 56, 88, 94, 109 Wiretapping. See surveillance. Wittes, Benjamin, 9, 119–20, 131 World War I, 19, 21, 32, 40, 41, 44, 88, 94, 106

181

World War II, 19, 21, 32, 36, 41, 44, 45, 75 –76, 88, 94, 106, 122 XYZ Affair, 55 Youngstown Sheet & Tube Co. v. Sawyer, 42, 62, 100 –101, 159 n.64 Yoo, John, 35, 103; on the detention of suspected terrorists, 116, 120 –21; on the effect of the AUMF, 103, 105, 106 –7; on the inherent authority of the president as commander in chief, 39, 51, 99; on the meaning of the declare war clause, 25, 26–27, 28–31, 47, 60, 63, 105; on the nature of the conflict between the U.S. and al Qaeda, 29, 88, 105–6, 118–19, 122; on warrantless surveillance, 30, 88, 94, 99–100 Zakaria, Fareed, 32

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ABOUT THE AUTHOR

SETH WEINBERGER is Assistant Professor of Politics and Government at the University of Puget Sound, where he teaches courses on international relations, U.S. foreign policy, international security, terrorism, constitutional law, and political philosophy. He holds a BA in political philosophy from the University of Chicago, an MA in Security Studies from Georgetown University, and an MA and PhD in political science from Duke University. His recently published articles include “Institutional Signaling and the Origins of the Cold War” in the journal Security Studies (Summer 2003), “Presidential War Powers in a Never-Ending ‘War’ ” in the ILSA Journal of International and Comparative Law (13, no. 1, 2006), and “Restoring the Balance: The Hamdan Decision and Executive War Powers” in the University of Tulsa Law Review (42, no. 3, 2007). His current research focuses on congressional-executive war powers.