Balkinization  

Monday, September 14, 2009

Adrian Fisher and John Yoo

Sandy Levinson

Steve Griffin has written a remarkable analysis of the rise of presidential power, focusing in particular on the analysis offered by the State Department to justify Harry Truman's unilateral decision to send American troops to Korea, the first of our major wars to be "undeclared" by Congress. There were, to be sure, a host of minor conflicts, but, as Steve notes, the Korean War can by no means be placed in their category. Steve's analysis of the State Department memorandum is devastating, at least if one takes it seriously as an argument within the standard conventions of American legal practice. What especially interested me, as I read his analysis, was whether there is a potential comparison to be drawn between the author of that memorandum, I assume Adrian Fisher, who was legal adviser to Dean Acheson during the relevant period, and John Yoo. That is, if one adopts Steve's convincing analysis, Fisher and other apologists for Truman's unprecedented unilateralism believed themselves, perhaps correctly, to be in a brand new world, which we denominate the Cold War. Recall that Acheson's best-selling memoir was entitled Present at the Creation. There can be little doubt that Acheson viewed the post-World War II world as essentially different (and I use the word "essentially" advisedly), calling for brand new conceptualizations of national, including presidential, power. (Acheson, of course, would be one of the ostensible "wise men" called to give advice by John Kennedy during the Cuban Missile Crisis. Thank God Kennedy has the wisdom to reject it, but Acheson certainly had no doubt that the President could, unilaterally, declare World War III without an iota of consultation with Congress (since, after all, time was of the essence).) What is so interesting about Steve's argument is that he doesn't necessarily disagree with the diagnosis offered by Acheson and his colleagues, he simply thinks they affected a transformation of the Constitution without going through the bother of formal constitutional amendment or even getting the imprimatur of the Supreme Court after defending their assertions in court. That is, according to Steve, neither text, history, nor doctrine supports the State Department's reading of Truman's power.

So this brings me to John Yoo:

There can be no doubt that Yoo also viewed himself as "present at the creation," of a post-Sept. 11 world requiring anything-goes executive unilateralism. And he in fact could draw on what Steve calls the post-1950 development of the new constitutional understanding (at least in the executive branch and among its friends). Most of us believe that Yoo dreadfully overreached in his depiction of a basically monarchical--or dictatorial--presidency. But what really interests me is whether Yoo's overreaching was any greater than that of Adrian Fisher and Dean Acheson? Do we have a metric by which to make such comparisons?


Fisher, Wikipedia tells us, had a long and honorable career, serving in the administrations of every Democratic President through Jimmy Carter. I have no desire to impugn that career, especially because he was apparently a devotee of nuclear disarmament and linked arms control agreements. That being said, do "we"--i.e., liberal Democrats--have a duty to plow through the historical sources, as Steve has so ably done, and reconsider the provenance of many of the things that were written at the time? Or can we analyze (and castigate) John Yoo without looking at some of the work of Fisher and many other people far more distinguished than John Yoo and just as committed, when all is said and done, to building the scaffolding for (relatively) uncontrolled executive power in the realm of foreign and military policy? Or is it sufficient to say that Harry Truman's (and Adrien Fisher's) motivations were better, that they sent American forces to die (and kill) in behalf of the United Nations, or, finally, that such dying and killing is simply so different from justifying torture that we can focus exclusively on the latter without addressing the former?

I would, of course, be extremely intersted to know Steve's own views about the "professional competence" of the State Department's memorandum.






Comments:

I can't see that any inadequacies in Fisher's analysis could somehow excuse Yoo's own failures.

However, I'd certainly think legal historians ought to be debating the quality of the arguments used. That still happens with cases and policies much older such as Dred Scott (just to pick an example from a Balikinzation contributor). The expansion of Executive power in peacetime may someday be seen as a very significant transition in US history (one we can't see the outcome of), and that analysis will be an important part of the historical judgment.
 

Marty Lederman co-wrote a lengthy two part law review article on the commander in chief power that might help. It's available online.

The value of such efforts (Louis Fisher, to take a name, also has written some good stuff that puts things in a historical context*) is clear. Yes, we have a duty to take the long view. This also helps to supply perspective, rank actions, and understand how things reached the current point.

Marty Lederman's articles btw also argues that an original understanding view does not "justify" current executive action. A somewhat ironic (if predictable) "living Constitution" approach based on argued changing times and conditions does.

A historical approach does help dispute such a "justification," including those, e.g., who compare Bush to Lincoln.

---

* A more firmly liberal take would be Peter Irons; John Hart Ely Jr. also wrote a good book on the topic of presidential war powers.
 

I was in college when the Korean War broke out. Growing up during the New Deal, I accepted that Congress did not declare war, that this was a "police action" as distinguished from a war, especially with the involvement of the United Nations. I do not recall great debates at the time, although surely some in Congress challenged the legality of Truman's action. But this truly was a war. Many WW II veterans had joined reserve units because of marketing that it involved only a weekly meeting and two weeks in the summer at camp with continued camaraderie with fellow reservists. Many of them were called up. Yes, there was a draft, but military service by that means could be readily avoided with numerous deferments available, such as my college - and then law school - deferments. So there was lacking the same public pressures that took place during the Vietnam War. Perhaps Truman got a free ride. But that should not serve as a precedent. I await with interest Steve's full article.
 

I can't see that any inadequacies in Fisher's analysis could somehow excuse Yoo's own failures.>

I agree.

Consider an engineer whose bridge, used exactly as designed, collapsed. Is it relevant that other engineers' bridges have collapsed? No: the only relevant fact is that bridges, properly engineered, do not collapse.

The only possibly interesting comparison I can see: was Fischer coming up with the case to justify the policy after the policy had already been decided? Apparently the answer is no; apparently that distinction still belongs to Yoo.
 

My impression from reading Steve's article is that the State Department memo was indeed written to justify Truman's already-taken actions vis-a-vis Korea. Indeed, had the memo been written, and distributed, prior to that, it would likely have generated a storm of protest inasmuch as conservative Republicans (such as Taft) especially were livid at the argument that American membership in the United Nations fundamentally transformed the American constitutional order by depriving Congress of its exclusive power to declare war.

I agree with Joe about the importance of Marty Lederman's and David Barron's monumental article on the commander-in-chief power. They, too, agree that Yoo's argument is indefensible if one takes "originalism" or, for that matter, legal doctrine very seriously. But they also agree that something important happens with the Korean War, that presidents do become significantly more assertive about their own prerogatives as a result of the exigencies of the Cold War, which, in effect, becomes a "permament emergency" justifying what had heretofore been seen as exceptional powers in the hands of the executive. (This is also linked, incidentally, with a growing contempt for Congress with regard to the abilities of its individual members or, just as importantly, its ability to act as a collective body.)

Finally, it's not that "inadequacies in Fisher's analysis" "excuse Yoo's own failures." Father, we have a duty to put Yoo's actions in historical context and then determine whether they are really such outliers as we might like to think. Some of the hostility to Yoo comes from his being young and callow (tenured though he may be). What if the identical memo had been written and signed by someone with the stature of, say, Adrian Fisher or Dean Acheson? Is the argument that they simply could never have written anything so shoddy as the Yoo memo? Well, that's an empirical question, and I read Steve as suggesting that they in fact did.
 

"Some of the hostility to Yoo comes from his being young and callow ..."

I find this a relatively trivial aspect of the hostility, particularly since Cheney has truly become the face of his views, views in no way limited to the writings of Yoo alone.

Lederman/Barron noted that Korea was a line in the sand, but still put it on a different level than the lengths of Yoo. Knowledge of history helps there as well.

But, people of that era put thousands of innocent Japanese citizens in internment camps. So, no, Yoo etc. were not novel in promotion of tyranny.
 

"But, people of that era put thousands of innocent Japanese citizens in internment camps. So, no, Yoo etc. were not novel in promotion of tyranny."

But in 1952, just a couple of years after the Korean War started, some people of that era serving on SCOTUS came down hard on Truman in the Youngstown Steel case. Query: was the failure to declare war referenced in any of the briefs or opinions in that case?
 

In order for Yoo to be described as operating within a "tradition", I think it would have been necessary for him to cite the relevant authorities for that "tradition" and explain how his conclusions naturally followed from or were consistent with it. AFAIK, Yoo did no such thing; his memos were little more than ipse dixits, with a few citations thrown in as passports to credulity.

If Yoo truly was unaware of prior arguments of this sort, then that's greater evidence of his outlier status, not a diminution of it.
 

Perhaps because the USA did not come into the 1914-18 war until 1917, so that total US military deaths were a mere 116,708 as opposed to the over 1 million of the British Empire and total 5.7 millions for the Entente Powers with the 4 millions of the Central Powers, there was not quite the same sense in the USA that there was in Europe that the Great War had to be the "war to end wars".

US isolationist sentiment torpedoed the participation of the USA in the League of Nations and in any event the Peace Settlements contained the seeds of World War II, which, once again, the USA did not join until some time after it had begun.

There are some who argue that the propensity of successive US administrations to embark on military adventures stems from an anxiety that, having been late for World Wars 1 and 2, the USA should be into World War 3 right from the start.

Although the USA signed the UN Charter, and ratified the Charter with the advice and consent of the Senate and after passage of the United Nations Participation Act 1945 the Act specifically provides for troops to be provided for UN purposes only if there is congressional authorisation. That is also true of the Atlantic Charter.

With the passage of the UN Charter, declarations of war went out of fashion. Neither the USA nor the UK has made a formal declaration of war since the inception of the United Nations precisely because the Charter forbids nations to wage wars of aggression and threats to international peace and security are supposed to be brought before the Security Council.

Actions taken with the authority of the UN under Chapter VII of the Charter are in UN terms not technically "wars" at all but "peace enforcement" or "police actions". This was true of the Korean "War". Interestingly, some raise the question whether the UN Resolution was valid since Russia did not vote - it was boycotting the UN at the time. The relevant text of the UN Charter states: "Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members" UN practice is to interpret this provision as meaning that the permanent members must positively vote against a measure - abstention or absence does not negative a vote. It is not a practice which finds favour among US isolationists.

However, just because UN peace enforcement is not described by the UN as a "war" - the UN tends to diplospeak and the use of force generally is authorised by the euphemism "all legitimate means" - it does not seem to me that that the euphemism need extend into constitutional interpretation.

The question was raised pretty starkly in Dellums -v- Bush 752 F. Supp. 1141; 1990 U.S. Dist. LEXIS 16611 but Judge Greene decided the issue was not ripe for decision by the Courts. However Judge Greene's discussion of the issues is not without interest.

It seems to me that whether an action is described as "peace enforcement" or "war", there is a strong argument for the president needing a congressional authority once hostilities are imminent, even if this does constrain somewhat the conduct of foreign affairs.

The need may be particularly relevant after the invasions of Afghanistan and Iraq, but it is worth noting that there was a war powers resolution. I shall be interested to see Professor Griffin's paper when it is complete and available to the "profanum vulgus" outside academia.
 

Mourad said...

With the passage of the UN Charter, declarations of war went out of fashion. Neither the USA nor the UK has made a formal declaration of war since the inception of the United Nations precisely because the Charter forbids nations to wage wars of aggression and threats to international peace and security are supposed to be brought before the Security Council.

This is an excellent point.

A declaration of war is simply a congressional resolution granting the President permission to initiate military action against an enemy. However, if an enemy has already initiated military action against the United States, the necessity of a declaration of war to commence hostilities would appear to be moot. Thus, a declaration of war would appear to be only necessary to be the first one to use military force.

The limits of Mourad's point are that a nation could initiate a war without it necessarily being a war of aggression. If an enemy intends to attack you and you strike him first to avoid the blow, that is a war of self defense. It is the equivalent of a situation where a person pulls back a clenched fist to strike you and you hit him first to avoid the punch.
 

One problem is that there is no plausible argument that the invasion of South Korea constitutedan "attack on the United States" unless one buys fully into the most capacious notion of the Cold War. So Truman's actions must be defended on the grounds that the UN Charter in fact amends the Constitution not only to disallow declarations of war (save in extremely limited situations), but also to transferto the President a unilateral power to initiate "police actions" anywhere in the world.
 

Various opinions in Youngstown do address war powers, de facto wars [assumed for sake of argument by Jackson], emergencies that are not wars [see Clark] that might warrant executive action, etc.

Justice Burton also noted:

Nor is it claimed that the current seizure is in the nature of a military command addressed by the President, as Commander-in-Chief, to a mobilized nation waging, or imminently threatened with, total war.

As Lederman/Barron note, even if it was clearly a war, Truman accepted that if statutory law restricted his hand, he could not act. He argued that the law allowed what he did.

Thus, the justices ultimately did not need to examine if Korea was a "war" as such.
 

Article 43 of the UN Charter in part as to agreements to use of armed forces holds:

shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.

This would appear to include congressional authorization to use forces.
 

No Article V amendment limiting Congress' power to declare has been adopted. So the UN Treaty somehow trumps this constitutional provision if the Executive so decides?
 

Bart wrote:-

"If an enemy intends to attack you and you strike him first to avoid the blow, that is a war of self defense."

This is the so-called Bush doctrine claiming the right to attack in the event of a perceived "imminent threat".

However, that is a right which the USA, in common with other members of the UN, has pledged by treaty, duly ratified by Congress, not to use. See Article 51 of the UN Charter. Thus, where another state actually launches an attack, there is the right to retaliate. In cold war terms: if A launches the missiles, B can press the button and implement Mutually Assured Destruction. But a mere threat is to be reported to the UNSC - there is no right to "get the blow in first".

Thus, with the ill-starred "Enterprise of Iraq", the claim was that Iraq had WMD posing an imminent threat to US and UK interests. The UNSC considered that the weapons inspectors should be allowed to finish their work. Bush and Blair decided otherwise and led a coalition which invaded Iraq. No WMD were found after exhaustive investigation. A war of agression was waged on false pretences. The problem for the international community is that the breach of international law has thus far been without conseqences.

Professor Levinson wrote:-

"So Truman's actions must be defended on the grounds that the UN Charter in fact amends the Constitution not only to disallow declarations of war (save in extremely limited situations), but also to transfer to the President a unilateral power to initiate "police actions" anywhere in the world."

I read Professor Levinson as saying that claims that the UN Charter amends the US Constitution are really untenable. I would agree. The USA like all sovereign nations continues to have the sovereign right to declare war for reasons which are good or bad or for no reason at all. By treaty the USA, like all other member states, has undertaken to the other member states not to exercise this power. What the consequence in the domestic forum of a breach of the UN Charter provisions might be rather depends on the view one takes of treaties.

Nor do I read the UN Charter as conferring any unilateral power on the president to initiate "police actions". Firstly, the power to initiate the action is vested in the UN Security Council and more accurately the presidential power is to vote or not vote in favour (foreign affairs - executive competence), but under the UN Participation Act, no troops can be committed without a resolution of the congress.

One could imagine a scenario where the UNSC resolved to take military peace enforcement steps against, say, Israel. Although the USA has used its veto in the UNSC more frequently than any other state - usually to stop resolutions about Israel, there might one day be a scenario where the USA abstained and allowed a resolution to pass. But then, if the president did not have the votes to obtain congressional approval for the commitment of troops, the US could not lawfully participate in the UN action.

However, there are always going to be those in the USA who take an extreme position - see for example 7/01 The UN vs the US Constitution by the most appositely named Larry Pratt.
 

Mourad lays it out quite well for me.

Last night I saw the Seinfeld repeat episode on "War and Peace" where Seinfeld told Elaine that the original name for Tolstoy's epic was "War, What Is It Good For?" Perhaps if Congress reasserted its constitutional role, a debate might provide the answer and then we can hold Congressmen (including one-third of the Senators) accountable with the ballot every two years. The goals of the UN (many of which are worthy) do not trump Congress' role, as Mourad points out.
 

US isolationist sentiment torpedoed the participation of the USA in the League of Nations

This is true enough, but it's worth noting, given the context of this discussion, that the formal reason given by the Senators who opposed ratification was that the joining the League would be inconsistent with Congressional power to declare war.
 

Mourad:

The United States Constitution takes precedence over the UN Charter and any other treaty in all things, including the grant of power to Congress declare war and the power to the President to wage war.

The issue here under what circumstances the President requires Congress' declaration of war in order to wage war. Under our Constitution, the UN has no say in the matter nor may the President or Congress delegate their constitutional war making powers to the UN.
 

Not unusually, Bart De Palma seems to have missed the point:

1. Nothing in the UN Charter affects the power of Congress to declare war. As I wrote above, the USA retains the sovereign right to declare war, for any reason or for no reason at all.

2. What the USA has commited itself by treaty to do is not to exercise that power other than in self-defence, but to refer threats to international peace and security to the UN Security Council.

3. The United Nations has no power to declare war. It has never done so. What it may resolve to do is to use military force to enforce peace. The United States, as a permanent member of the Security Council may prevent any such resolution by the use of its veto. Under the UN Participation Act, the power of the USA to commit troops for such a purpose is vested in the Congress.

Thus, there is no delegation of the war powers of either the President or the Congress to the UN explicit or implicit in the UN Charter or the UN Participation Act. That is a non issue. But there are other issues.

Should all uses of military force be categorised as "waging war"? At the time of your founding fathers, international organisations such as the UN simply did not exist, but there were at the time (and still are) examples of the use of military force falling short of war. For example, the "punitive expedition". A state of war is qualitatively different from a "punitive expedition" in that it puts the whole life of the nation at risk. There may be invasion (and in these days the use of weapons of mass destruction). Thus, the Constitution envisages desperate and exceptional measures in wartime: for example the suspension of habeas corpus. But what about the use of military force short of war, for example, the punitive expedition, or participation in peace keeing operations?

As an example take the case of the Reagan Administration's invasion of Grenada in 1983? I do not recollect that there was any declaration of war by the Congress nor prior Congressional approval of the use of US Forces for the invasion. So was this exercise of US military might constitutional as a matter of US law?
 

Mourad,
Reagan was trying to "make his bones" as CIC especially since your Maggie (Iron Draws) Thatcher had one-upped him with her Falkland Islands war a year earlier. Either that or Reagan had fond memories of the ballad Grenada (or is it Granada?) going back to his movie days and was reminiscing.

By the Bybee (no, I haven't forgotten), let's extend the theme of this thread to consider how a constitutional convention might address the issue of war with the benefit of so many undeclared wars and the like over the years. To keep things lively, a song for such a discussion could be

"Yoo, you're driving me crazy ...."
 

Shag, if my memory serves me well, the Reagan invasion of Grenada (more worthy of a WS Gilbert libretto for a Savoy Opera) was somewhat opportune in political terms since it served to distract the plebs from Ronald Reagan's "Varus, give me back my legions" moment in relation to US Marines in Beirut.

But it is also apt to demonstrate that the issue of when the executive may lawfully use military force without congressional sanction is at best a "fuzzy area".

The contribution of troops by the USA to UN operations is more clearly under congressional control than many other instances of the USA throwing its military might about. Perhaps that is why the likes of John Bolton were so rabidly anti-UN.
 

This comment has been removed by the author.
 

Mourad:

A declaration of war is simply a permission to start a war. If the United States must gain UN permission to start a war that is not defensive then the US is seeking a de facto declaration of war from the UN.

The US Constitution vests the power to declare war solely with Congress. Congress has no authority to delegate that power in whole or in part to the UN or any other body.

Thus, to the extent that the UN Charter treaty requires the US to seek permission from the UN to start a war, the Charter is unconstitutional and void.

As to your observation that President Reagan did not seek or obtain a declaration of war against Grenada, Congress almost always declines to exercise its power to require a declaration for small wars. The US has been in dozens of wars but only declared war a handful of times.

The reason for this is that there is very little Congress can effectively do to stop a President from using his standing army and current supplies any way he wishes. The larger the standing Army became, the more latitude the President had.

A President is only really compelled to come to Congress to seek a declaration of war or now AUMF's when it needs money and troops for the war from Congress.
 

"A declaration of war is simply a permission to start a war."

So I guess there is no controversy that might be addressed at a Constitutional Convention on the subject. And a President is free to start a war without Congress' permission, even if it runs on for many years; that Congress' only challenge or remedy is to deny funding; that SCOTUS has no say in the matter.

Comparable to the ABA's "Law in a Nutshell," this is "Law in a Backpack."
 

Shag:

That appears to be the reality in historical practice, although I would add impeachment to your list of congressional remedies.
 

"Shag:

That appears to be the reality in historical practice, ...."

says our resident textualist on constitutional interpretation. What does originalism (in any of its lives or forms, including a recent "Originalism in Good Faith" regarding precedent) have to say? Keep in mind that when both the Articles of Confederation and the Constitution were enacted the new nation had recently gone through a successful Revolution, a war. Perhaps this history might suggest that Congress' war declaration power was intended to have teeth to prevent the Executive from taking precipitous action. Is our resident textualist (a tad different than an originalist?) in talking about the "historical practice" on war supporting living constitutionalism? Perhaps another remedy for Congress is to take some political Viagra.
 

Shag:

You are speaking to the choir. I believe that the Declaration of War clause requires the President to seek congressional permission to initiate a war. If the war has already been initiated by an enemy against the United States, I believe that the requirement to declare war has already been mooted by the enemy and is unnecessary.

The problem here is that Congress does not have a realistic mechanism to stop a President from using the standing military and supplies he or she already possesses to initiate a war. Cutting off support for the troops on a battlefield is a political non starter, impeachment seems to be reserved for criminal acts rather than violations of the Constitution and the courts have no wish to get in the middle of this ongoing political battle between the elected branches.

I am simply observing reality not interpreting the Constitution.
 

Coincidentally, I just finished rereading Prof. Melvin Urofsky's Address at the Court contribution to "Teaching Legal History & Constitutional History" conference at the University of Maryland on March 19-21, 1999. It includes a discussion of AG Meese's original intent theme by focusing upon a 1778 treaty with France in the event France was engaged in law. The US was in the midst of its war and needed all the help it could get. Following the French Revolution, France and England went to war in 1793. The French called in this treaty "chit" but Pres. George Washington ignored this "on the grounds that it was signed with a now defunct regime [the Bourbons], and [tells] both sides that the [US] will be neutral. To this end, he issues a proclamation of neutrality in April 1973.

"Thomas Jefferson is aghast! By his reading of the Constitution, since only the Congress can declare war, only Congress can declare neutrality in a war, and Washington's unilateral action smacks of the worst excesses of the British monarchy. Jeffersn turns to his good buddy, James Madison, and urges him to 'take up your pen, good sir, and strike at this heresy.' Madison and Hamilton then engage in a series of letters, written under Latin pseudonyms, defending and attacking Washington's actions and debating whether he had the power to do so under the Constitution.

"The beauty of this story is, of course, that Washington had presided over the Philadelphia convention, Madison is known as the 'father' of the Constitution, and Hamilton was at the convention, and along with Madison wrote the bulk of the Federalist papers. The fact of the matter is that this issue had never come up at the convention, or in the Federalist, or in the ratifying conventions. If Edwin Meese had studied any history he might have known that."
[Earlier in Prof. Urofsky's speech regarding Meese, he said: "And, Meese and other argued, we could find all the clues we needed on what they [the Framers] meant in the debates in the Philadelphia convention, the Federalist Papers, and the debates in the ratifying conventions."]

So, if the text does not provide the answer, must we resort not to interpretation but to "construction" of the Constitution? And might such "construction" depend upon changing circumstances regarding war over the years? Maybe I should take a step back from the choir.
 

Well, the choir was there for the music, not the preaching. Not that there's anything wrong with a good sermon. But the choir is aware that there are certain sermon topics that Elder Fred has no moral authority to speak on.

For instance, Fred's use of funds in the past does not give him standing to speak on stretching God's dollars. Even though we'd all agree with every point he made, it would be well if Elder Sam made the same points. Fred's recent and convenient rediscovery of canon law on the topic, how shall we say, raises more questions than it answers.
 

In an earlier comment, I referenced Youngstown Steel and Joe provided a few comments on it. I just downloaded and printed "The Political Economy of Youngstown" by Prof. Edward T. Swaine that focuses on some recent "Executive Branch Behavior" and "Effects on Congressional Behavior" that might be relevant to this thread. The article is available via SSRN:

http://ssrn.com/abstract=1474320

Caution, the article runs 75 pages, double spaced. There goes my weekend.
 

Meanwhile, "Harold Hongju Koh was just sworn in today as the State Department’s chief lawyer."

item.

Whereforth Dawn Johnsen?!
 

Bart's recent posts admit that in practice there has little effective constraint on the executive in relation to the "undeclared wars" (whatever their technical nomenclature) in which the USA has been involved since the end of WW2. Yet your founding fathers had determined that much less power would be granted to the executive than was then exercised in the name of the British sovereign.

The founders' "original intent" can be deduced from the fact that the Constitution vested the power to declare war in the congress and not in the executive, and, while the executive was given the general conduct of foreign policy, certain foreign policy acts, notably the power to make treaties, might only be accomplished with the advice and consent of the senate.

But the great wisdom of the founding fathers did not enable them to forsee how "armed conflicts" would need to be managed in the 20th and 21st century. In the 18th Century it took so long for news to travel between the continent of Europe and the Americas, that there was a running problem for the navies of the time: they often did not know whether the countries whose flags they flew were at war or at peace. Very many months would elapse between a declaration of war and actual hostilities. It was still practicable for spectators to go out and watch a battle taking place and that remained the case for quite some time. See the Photograph of Spectators watching the Battle of Nashville 1864 and the practice of private citizen spectators taking an excursion "to see a battle take place" survived in Europe right through to through the early part of WW1.

So, war in the 18th or 19th Centuries was a far cry from the Tom Lehrer vision of the potential ICBM exchange "We will all go together when we go" with its apposite refrain for the Congress:-

"Oh we will all burn together when we burn.
There'll be no need to stand and wait your turn.
When it's time for the fallout.
And Saint Peter calls us all out,
We'll just drop our agendas and adjourn."


So how might the original intent of the framers be given effect today? A putative constitutional convention might well consider taking on board the idea of making cabinet secretaries answerable to congress both collectively and individually and providing that most executive acts could not be put into effect without being countersigned by the responsible cabinet secretary. That would at least return to the congress a greater measure of control over these matters of such great national and international moment.
 

Mourad said...

So how might the original intent of the framers be given effect today? A putative constitutional convention might well consider taking on board the idea of making cabinet secretaries answerable to congress both collectively and individually and providing that most executive acts could not be put into effect without being countersigned by the responsible cabinet secretary. That would at least return to the congress a greater measure of control over these matters of such great national and international moment.

You appear to be proposing that the President must have military decisions signed off by his or her Secretary of Defense. The Sec Def is appointed by the President and serves at the President's pleasure. The Sec Def has no obligation to Congress. I do not see how that changes if the Sec Def has to sign off on military decisions.

The Declaration of War Clause was premised on a Republic with no or a very small standing army that required Congress to call up the militia to go to war. With no standing Army, the President had no means of starting a war without Congress.
 

"With no standing Army, the President had no means of starting a war without Congress."

Does this suggest that Congress, by bringing about a standing army, delegates its war declaring authority to the Executive? Or that Congress by implicattion in funding an army (or navy) declared war? Perhaps originalism and especially textualism do not provide an answer. So I ask, once again, how might a constitutional convention address this? Or does Constitution 2020 have the foresignt to answer for the present day and age? If the Executive were to regulate interstate and foreign commerce beyond congressional legislation, would SCOTUS have a voice (assuming standing) in determining the validity of such action by the Executive but not with respect to the Declaration of War clause?
 

The judiciary would have fun wading into this swamp.

What is a war?

Is it as Mourad would have it only a military conflict between nation states or, as I believe, include wars with non state groups?

What is the temporal duration of a war? Is a single air raid on Libya a war? The week long Grenada operation? Months? Years?

Does a war require ground troops? Do air campaigns count?

Do peacekeeping operations where we invade a sovereign nation with the possibility, but not certainty, of actual fighting?

Does Congress keep coming back to the courts every time the President acts under a new factual basis?

These are a few of the reasons why the judiciary will consider this a political issue.

Congress could move back towards the original view of a limited standing army by bringing all the troops home that are not in or supporting an active war. Under this scenario, the US would have a large standing Army, but the President would have to come to Congress to pay for the army's movement movement overseas ala the Persian Gulf War.
 

Yoo operationalized bureaucratic torture - big difference. It's a crime. Efforts like this attempt to make us refer back to some immutable somewhat untouchable value - like Presidential Constitutional Power - to have us acquiesce in the crime not being prosecuted. Will not work. Let John Durham do his job.
Best,
Ben
 

"The judiciary would have fun wading into this swamp" says Bart. Oh really?

We can all manufacture scenarios: WS Gilbert did quite well in Iolanthe:

""The feelings of a Lord Chancellor who is in love with a Ward of Court are not to be envied. What is his position? Can he give his own consent to his own marriage with his own Ward? Can he marry his own Ward without his own consent? And if he marries his own Ward without his own consent, can he commit himself for contempt of his own Court? And if he commit himself for contempt of his own Court, can h.e appear by counsel before himself, to move for arrest of his own judgment? Ah, my Lords, it is indeed painful to have to sit upon a woolsack which is stuffed with such thorns as these!.

However, if one were to assume that by some dreadful aberration in the process of appointment of federal judges to the DC Circuit, Bart were installed as a circuit judge, I should be interested to read his findings and holdings on the questions he poses in his most recent post, obviously with citation of appropriate precedent. Or, failing that, perhaps he could have a stab at giving some guidance on the exercise of the wardship jurisdiction.
 

Mourad:

As a judge, I would spend a great deal of time attempting to determine whether the phrase "declaration of war" had a generally accepted original meaning. I do not pretend to know this now. If not, I would rule that this is a political issue for the elected branches to resolve.

While protecting individual rights from government infringement requires the judiciary's strictest scrutiny because of the government's grossly disproportionate advantage in power, such is not the case when refereeing balance of power arguments between co-equal elected branches of government. Congress has more than ample sources of power to protect its prerogatives. When in doubt, let the elected branches resolve their own disputes.
 

"As a judge, I would spend a great deal of time attempting to determine whether the phrase 'declaration of war' had a generally accepted original meaning."

I assume our intrepid backpacker with his backpack now concealed by his robes would limit his search to the 1789 timeframe for such a meaning. Of course, "generally accepted" by whom would have to be considered - framers? ratifiers? public (elite or otherwise)? others? (Justice Thomas would do the same for "commerce.") But weaponry of war (commerce as well?) has significantly changed since 1789. So perhaps by means of "construction" as opposed to "interpretation," consideration might have to be given to the many types of wars that have occurred since 1789. To leave this to the political process can result in the deaths of many individuals who have rights - shouldn't the rights of these individuals be protected other than at the polls? Many could die from the bullets in the time it might take to remove the Executive and Congress with ballots.
 

It should be noted that there are various statutory provisions in effect that change the status quo in times of emergency and "war," so the courts have to settle such matters already.

In fact, when the Whiskey Rebellion broke out, there was a provision requiring judicial confirmation that normal procedures could not handle it before the President could call forth the militia.

Again, the Barron/Lederman articles are of some value.
 

Shag from Brookline said...

BD: "As a judge, I would spend a great deal of time attempting to determine whether the phrase 'declaration of war' had a generally accepted original meaning."

I assume our intrepid backpacker with his backpack now concealed by his robes would limit his search to the 1789 timeframe for such a meaning. Of course, "generally accepted" by whom would have to be considered - framers? ratifiers? public (elite or otherwise)?


All of the above.

But weaponry of war (commerce as well?) has significantly changed since 1789.

Not fundamentally. The weapons are more efficient, but the objectives of war are largely the same.

To leave this to the political process can result in the deaths of many individuals who have rights?"

The military is a volunteer force who assumed the risk of going to war and the enemy has no rights whatsoever under the Constitution as written.
 

Our resident Quasimodo in judicial robes [sorry, I couldn't resist the picture in my mind of the robe covering his backpack] says:

"The military is a volunteer force who assumed the risk of going to war ... has no rights whatsoever under the Constitution as written."

But what about when there are conscriptions, such as during the undeclared Korean and Vietnam wars? What about the individual rights of draftees?

[Note: I don't buy assumption of the risk as a broad brush for volunteers of any and all risks.]
 

Shag:

Congress would have to enact a draft to provide personnel for a war, which is a pretty good indication they approve the war with or without the formality of a declaration.
 

The military is a volunteer force who assumed the risk of going to war

Call me crazy, but I don't write off the lives of our men and women in uniform that lightly. I feel that their lives are precious and not to be squandered. Just my opinion. Others may feel differently.

and the enemy has no rights whatsoever under the Constitution as written.

Actually, in Iraq for instance far more civilians have died than anybody else since our invasion. Not the enemy. Civilians. The folks we professed to care about so much when we invaded.
 

"Congress would have to enact a draft to provide personnel for a war, which is a pretty good indication they approve the war with or without the formality of a declaration."

Enacting a draft is the equivalent of a declaration of war by Congress? Wasn't a draft enacted many months prior to Pearl Harbor (as I recall in 1940), before Congress declared war following Pearl Harbor? A draft may be enacted in preparation for war (or perhaps some other national emergency) but surely it is not the equivalent of a declaration of war.

Again, I raise the question of how a constitutional convention might address this issue.
 

Shag:

The world was at war in 1940. Congress knew it was just a matter of time before we joined in.

Drafts are rare in US history and generally occur only during major conflicts. The only interwar draft that I recall was between Korea and Vietnam.
 

"The world was at war in 1940. Congress knew it was just a matter of time before we joined in."

Let's go back in time to 1914 and WWI with America's entry in 1917. In each instance, what did Congress do? Declare war.

As for post-WWII, even though drafting was suspended, the Selective Service System continued with required registrations, including mine. So the mechanism was in place when the Korean War was not declared, continuing after this war ended (when I was drafted after deferement for college and law school) and available when the Vietman War was not declared. When the draft ended, registration was still required "just in case."

So the case that Congress with the draft by implication exercises it declaration of war power is not that strong. Being prepared is distinct from exercising this power.
 

November 2009 update:following Judge White's decision to let Padilla's suit against Yoo proceed, Yoo's lawyers say the suits against Yoo are politics, not law.

Apparently where you stand depends on where you sit. When in offices, Yoo claimed his services were law, not politics.
 

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