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

Brian Tamanaha

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.