Balkinization: The Words of A Principled Conservative on "Law and War"

The Words of A Principled Conservative on "Law and War"

Brian Tamanaha

Douglas Kmiec is a principled conservative, former head of the OLC under two Republican Administrations. Here is what he had to say about "Law and War":

There is probably no more important executive power topic than the relation between law and war. For example, Chris Matthews asked Governor Romney whether he would need the authorization of Congress to take military action against Iran’s nuclear facilities. Soundly, the Governor responded that his overriding consideration as President of the United States would be to do what is "in the best interests of the United States to protect us against a potential threat." However, because the Governor also commented that " he would consult legal counsel on the range of his available authority," he has been taking some flak.

This criticism is wholly unwarranted....

But when war is unavoidable, what about all the law talk and the consultation with lawyers? Is this faithful or inconsistent with our constitutional expectations for a president? The answer is quickly found by even the most cursory examination of the constitutional convention of 1787. War was not to be exempted from the rule of law in our constitutional design....

Then and now, genuine peace is the aim of the United States. But the premise of Mr. Matthews’ question was that the President of the United States was confronted by a nation with nuclear capacity that had anything but peace on its mind. This is a question not to be glibly answered, for it is more difficult than even the founding generation could anticipate. It involves neither a sudden attack nor a consciously deliberated decision to go to war in an extended, conventional sense. The whole point of preemption is avoidance of an extended war. That said, modern conflicts like Iraq give reason to doubt the ability to surgically preempt in many instances, and in any case, it is seldom clear where preemptive action will lead. In the constitutional convention of 1787, Roger Sherman noted that "the executive should be able to repel and not to commence war."....

For all of their faults, and there are many, lawyers do have the ability to check the abuse of power and in so doing to ensure that the civilized world does not rush headlong into chaos.

It was this thought that lay behind Governor Romney’s entirely appropriate debate response. Candidates too willing to disregard the obligations of the law, be it the law of the Constitution or of our international agreements, do us no favor, and indeed may endanger our very safety. Indeed, Governor Romney’s response is as old as the union itself. To be sure, in this over legalized world, the notion of consulting with lawyers to know the scope of authority against a terrorist force that is the very antipathy of law has an odd resonance. Indeed, in a radio interview, my former colleague in the Reagan administration Ted Olson who has now signed on with Rudy Giuliani, opined that "this whole issue of consulting with lawyers" reminded [him] that "you need to be ready to act and without having to go get a legal opinions."

That’s a curious comment coming from Mr. Olson, former head of the Office of Legal Counsel and Solicitor General of the United States, and who has devoted a good deal of his life to writing legal opinions to presidents about the scope of their war power....

What is to be regretted is the tendency of some presidential candidates just to look and sound like a tough, as if, upon assuming the presidency in a time of war, law does not matter.

It is sometimes said that Lincoln needed to go beyond the law to save it. Perhaps, in extremis that is so. Yet, Lincoln would likely have been the first to concede that Presidents operating outside the law when making the awesome decision to commit the lives of their citizens to war are to be regretted, not revered.

It's reassuring to read these words from Mr. Kmiec, especially after hearing so much rhetoric from conservatives suggesting that the President's power during war is nigh boundless. Last night on Frontline, for example, John Yoo once against asserted that President Bush has the constitutional authority to do pretty much as he pleases in defense of the nation.

When conservatives develop and articulate their positions on the legal restraints on presidential power, perhaps it would be wise to do so while imagining that a Democrat (say, Senator Clinton) occupies the office. This might help avoid embarrassing future flips in position. While it's hard to imagine Mr. Yoo making the same arguments to justify the expansive power of President Hillary Clinton, Mr. Kmiec can remain true to his already articulated position.

Posted 10:46 AM by Brian Tamanaha [link]

Comments:

I have never been much of a Doug Kmiec fan; I've always felt that he was too prone to advocate the party line even when it was clear that it wasn't consistent with the law.

But he deserves great credit for this essay.

# posted by

Dilan : 12:42 PM

The Constitution clearly requires the Congress to provide a declaration of war before the President can start a war against another nation state. However, beyond that circumstance, things get murky.

In a prior post, given that a declaration of war starts a war, I have suggested that such a declaration is unnecessary when an enemy has already started a war against the United States. Under such a circumstance, a declaration starting a war is moot when the war is already underway.

Iran has been waging a low level terror war against the US, which it apparently has suspended recently to deny us a causus belli for taking out their nuclear weapons program. In any case, it is arguable whether such low level terrorism constitutes an ongoing war which excuses the need to obtain a declaration of war to start a much larger military offensive against Iran.

Beyond the text of the Constitution, the two branches have developed a custom where the President has only come to Congress for a declaration of war for a ground war against a major nation state. Our history is replete with small ground wars and limited aerial bombing campaigns against minor nation states or non state actors ordered by a President without a declaration or war or protest by Congress.

Finally, because the President has plenary command over the troops as CiC, Congress really only has two practical remedies if the President decides to ignore the requirement to obtain a declaration of war - impeachment or cutting off funds to the troops. Neither is easy or popular, thus the declaration requirement is effectively pretty hollow.

A President would be well advised to seek a declaration of war or its modern equivalent, an AUMF, simply to bolster the legitimacy of a war. However, this advice may be undermined by the cowardice of members of Congress who vote to authorize war when it is popular and then repudiate their own votes when things get tough.

In the case of Mr. Bush ordering a bombing campaign to take out Iran's nuclear weapons capability, there does not appear to be much that Congress can do except complain. Impeachment really is not an effective option in the waning days of the Administration and the supplies being used are already purchased and cannot be taken away.

Mr. Bush has no incentive to seek a declaration of war because the party controlling Congress has already made its intent clear that it will not support any new military actions. Thus, if the President determines that a bombing campaign is necessary to keep Iran from obtaining nuclear weapons in the projected next 2-5 years, he may decide to act on his own and allow history to be the judge of his actions.

# posted by

Bart DePalma : 12:47 PM

"While its hard to imagine Mr. Yoo making the same arguments to justify the expansive power of President Hillary Clinton . . ."

Did Prof. Tamanaha even do rudimentary research to see if Prof. Yoo ever opined on executive war powers during the Clinton years (and, more specifically, did Prof. Yoo write about a Democratic president's war actions?)? A quick Lexis check shows that Yoo first made his executive war power arguments during the Clinton presidency, and specifically had an article on the Kosovo war (see below). I believe a correction of the post is in order.

March, 1996, 84 Calif. L. Rev. 167, 36043 words, ARTICLE: The Continuation of Politics by Other Means: The Original Understanding of War Powers, John C. Yoo *

Spring, 2000, 1 Chi. J. Int'l L. 149, 4590 words, ESSAY: WHAT'S WRONG WITH INTERNATIONAL LAW SCHOLARSHIP?: The Dogs That Didn't Bark: Why Were International Legal Scholars MIA on Kosovo?, John C. Yoo *

# posted by

Unknown : 1:24 PM

"Low level terror war" = "not a war." An exemplar of the piling-on of adjectives to negate the meaning of the word they ostensibly modify.

This has been today's edition of Bartspeak Demystified.

# posted by

Anderson : 1:45 PM

I think Bart has maybe half a point here. The President, given a military, will use it, regardless of what the laws or the Constitution say, and, as a practical matter, Congress can't do much to stop him.

The difference here is that before the Cold War, the President had only a small peacetime army, which limited what he could do with it. If he wanted to fight a major war, he had to get approval from Congress or he wouldn't have the army to do it. The decision to raise an army is a weightier one that the decision to use an army that already exists.

Since the beginning of the Cold War, we have kept a (relatively) large army on foot during peacetime. This has permitted the President to commit 300,000 troops to Korea or 500,000 troops to Vietnam without a declaration. These were not "small ground wars." And if the President does go to Congress for permission, the process is, quite frankly, rigged. Once again, it is much harder to refuse the President permission to use the army he already has than to refuse to build an army for him.

It is a difficult problem. The decision to go to war should not be taken lightly, but as long as the President has the instruments to fight a major war at hand, it will be. And I am not one who believes we should disband our army to prevent the President from misusing it. So the question is, how do we allow the President to have a major army at his disposal but keep him from using it freely. Any suggestions?

# posted by

Essayist-Laywer : 2:28 PM

So the question is, how do we allow the President to have a major army at his disposal but keep him from using it freely. Any suggestions?

One reasonable suggestion would be to bring home all troops stationed overseas and close most of the foreign naval bases. Reducing the size of the Navy's surface fleet (which we should do anyway -- too vulnerable to missles) would also help.

# posted by

Mark Field : 3:39 PM

el:

You make a very good point concerning the dangers of a standing army.

One of the Founder's greatest fears was that a President would abuse a large standing army by turning it against the People.

That has not happened, but the existence of a large standing army has made it much easier to enter into large wars.

This is yet another reason to take your vote for President very seriously.

# posted by

Bart DePalma : 4:16 PM

The Framers certainly had before them the example of Julius Caesar, whom some in the Senate wanted to prosecute for starting his "Gallic War" on a rather thin pretext, once he'd been given some legions and the province of Gaul.

Of course, because of his success, most in the Senate went along with Caesar's usurpation of power. Didn't turn out too well for the Senate.

# posted by

Anderson : 4:55 PM

Nom,

Thanks for tracking down the article. I'll take a look at it. About a year ago I read a piece from the 1990s by Prof. Yoo criticizing then President Clinton for making expansive claims about the President's power as Commander in Chief. The thrust of the piece is clearly at odds with his current position. Unfortunately I cannot locate it, so you'll have to take my word that it exists.

Brian

# posted by

Brian Tamanaha : 6:11 PM

This is yet another reason to take your vote for President very seriously.

# posted by Bart DePalma : 4:16 PM

If past performance is any indication, you'll be voting for the candidate most likely to enter us into a large pointless war, so your advice here is laughable.

# posted by

Bartbuster : 9:07 PM

The use of the phrase "Principled Conservative" in the title to this post suggests there may be such a thing as an "Unprincipled Conservative." Perhaps in this instance Kmiec, a conservative, is Principled. But so what? There are Prinipled Liberals but this Blog does not, to my recollection, use the word "Principled" to describe certain Liberals that may be referenced in posts and comments. Perhaps the use of "Principled" for the Conservative Kmiec is to point out that sometimes even a Conservative may be correct in taking a position that a "Principled Liberal" can agree with. My quarrel is not with Conservatives, with Kmiec or with being Principled. But if in one instance a Conservative is described as Principled on a Liberal Blog (which this is, isn't it?), what is one to think of a Conservative who is not so described? Let the reader decide whether in this instance Kmiec is "Principled." After all, a stopped clock presents the correct time twice a day. I'd like to think that all of the posters and commenters on this Blog are "Principled" - until I read what they say. On "Principle" I am the "Decider."

# posted by

Shag from Brookline : 5:56 AM

On the flip-flopping of John Yoo's positions, see this link http://www.salon.com/opinion/greenwald/2007/07/24/yoo/index.html

# posted by

aristotelian : 6:32 AM

"Low level terror war" = "not a war."

Doesn't every schoolboy know that Iran has been at war with us since 1979? Really now, Anderson.

# posted by

Steve M : 4:12 PM

anderson said...

"Low level terror war" = "not a war." An exemplar of the piling-on of adjectives to negate the meaning of the word they ostensibly modify.

Tell it to the families of the soldiers in Iraq and Afghanistan who were killed or wounded with Iranian weapons used by Iranian trained fighters.

Iran was waging very real war against the United States the same way the United States waged very real war against the USSR and its satellites in the 80s by training and supplying rebels in Afghanistan, Nicaragua and other countries.

# posted by

Bart DePalma : 9:17 AM

Bart writes: Iran was waging very real war against the United States the same way

That explains why we are getting ready to invade them, Saudi Arabia, China, and Pakistan.

This is at best strained reasoning. What you're advocating is open war for purely political reasons, not war in response to war.

# posted by

John : 1:25 PM

bitswapper:

When did I advocate open war against Iran?

Pointing out the reality of Iran's terrorist war against the United States in Iraq is not the same as calling for a wider war against Iran. (However, if this non sequitur makes you vote against Hillary for a less electable Dem, by all means act on your impulse).

In reality, given that nearly all Iranian related terrorism has ceased in Iraq and we are releasing captured Iranian militia, it appears that the United States did something behind the scenes to address and stop this problem short of a wider war.

# posted by

Bart DePalma : 11:17 AM

In reality, given that nearly all Iranian related terrorism has ceased in Iraq and we are releasing captured Iranian militia, it appears that the United States did something behind the scenes to address and stop this problem short of a wider war.

# posted by Bart DePalma : 11:17 AM

Indeed, if this latest intel report is any indication, it appears we agreed to give a Iran a big wet kiss.

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