Robert F. Turner: Executive Power in Wartime
[Robert F. Turner cofounded the Center for National Security Law at the University of Virginia School of Law in 1981 and is a former three-term chairman of the American Bar Association's Standing Committee on Law and National Security.]
The scope of executive power has become a key and controversial matter since September 11, 2001. It is central, for instance, to assessing the legality of warrantless wiretaps by the National Security Agency of communications between America and suspected terrorists abroad, and the propriety of NSA exploitation of phone-company records to identify numbers that have frequently communicated with phones tied to suspected foreign terrorists.
In several recent books, bright scholars have explored the subject and come to a wide variety of conclusions. Each author brings a certain amount of baggage to the topic, as do I after working in this specialized realm for more than three decades — in academe; as national security adviser to a member of the Senate Foreign Relations Committee; and in several executive-branch positions, including acting assistant secretary of state for legislative affairs.
I was delighted to see that the Berkeley law professor John Yoo has taken an almost identical approach to the one I've used in my work — and reached many of the same conclusions — in his excellent The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11. He examines the writings of the legal scholars and political theorists whom the founding fathers read, and identifies lessons they derived from the American Revolution and the Articles of Confederation. Then he scrutinizes the Constitutional Convention, The Federalist Papers, and the Constitution-ratification debates in the states.
Yoo explains that the framers of our Constitution viewed foreign affairs as a component of the "executive Power" vested in the president by Article II, Section 1. Writers like Locke, Montesquieu, and Blackstone recognized that large deliberative assemblies lacked the institutional competence to manage what Locke described as "war, peace, leagues, and alliances." The framers reaffirmed those theories from personal experience, as the Continental Congress proved unable to act with unity of plan, secrecy, or speed and dispatch during the American Revolution.
In April 1790, Thomas Jefferson explained that the transaction of business with foreign nations was "executive altogether," and therefore — because "the executive Power" was expressly vested in the president — it was the prerogative of the president, save for the exceptions vested in the Senate, which were to be "construed strictly." Those exceptions included such things as the power "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." President Washington, Chief Justice John Jay, and Rep. James Madison endorsed this view, agreeing that the Senate had, in Washington's words, "no right to interfere" in this business save, again, for those narrowly construed exceptions.
Despite his bitter disagreement with Jefferson on many other issues, drawing on this same clause three years later, Alexander Hamilton remarked that "as the participation of the Senate in the making of Treaties, and the power of the Legislature to declare war, are exceptions out of the general 'Executive Power' vested in the President, they are to be construed strictly — and ought to be extended no further than is essential to their execution."
But even the best books on this intricate subject tend to be pocked with errors. In a single paragraph, Yoo asserts that President Truman sent troops into Korea in 1950 without seeking Congressional approval, and that President Johnson never obtained "unambiguous Congressional authorization" for Vietnam. In reality, once-top-secret State Department records reveal that Truman repeatedly sought to address a joint session of Congress and had Secretary of State Dean Acheson draft a resolution of authorization. But in repeated consultation, he was told by Tom Connally, chairman of the Senate Foreign Relations Committee; Scott Lucas, the majority leader; and other Congressional leaders that he had adequate authority under the Constitution and the Charter of the United Nations, and that he should stay away from Congress and make his presentation as a fireside chat rather than as a Congressional address. Truman acquiesced to the will of Congress.
And one of the many myths of the Vietnam War was that Congress never clearly authorized it. On the contrary, initially Congress was far more committed than was Johnson to using force to stop communist aggression in Southeast Asia — a policy first established during the Eisenhower administration when the Southeast Asian Collective Defense Treaty was ratified with the consent of an almost unanimous Senate. In August 1964, a 99.6-percent majority in Congress enacted the Southeast Asia Resolution authorizing the president to use armed force to assist South Vietnam, Laos, and Cambodia in defending their freedom. During the floor debate, Sen. J. William Fulbright, chairman of the Foreign Relations Committee, explained that Congress was authorizing the president to use such force as could lead to "war"; and Congress more than tripled Johnson's appropriations request on its own initiative. The authorization for war in Vietnam and Cambodia fully satisfied the requirements of Section 2(c)(2) of the War Powers Resolution, and for years Congress fueled the war by appropriating tens of billions of dollars by more than 90-percent majorities in each chamber....
Read entire article at Chronicle of Higher Ed
The scope of executive power has become a key and controversial matter since September 11, 2001. It is central, for instance, to assessing the legality of warrantless wiretaps by the National Security Agency of communications between America and suspected terrorists abroad, and the propriety of NSA exploitation of phone-company records to identify numbers that have frequently communicated with phones tied to suspected foreign terrorists.
In several recent books, bright scholars have explored the subject and come to a wide variety of conclusions. Each author brings a certain amount of baggage to the topic, as do I after working in this specialized realm for more than three decades — in academe; as national security adviser to a member of the Senate Foreign Relations Committee; and in several executive-branch positions, including acting assistant secretary of state for legislative affairs.
I was delighted to see that the Berkeley law professor John Yoo has taken an almost identical approach to the one I've used in my work — and reached many of the same conclusions — in his excellent The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11. He examines the writings of the legal scholars and political theorists whom the founding fathers read, and identifies lessons they derived from the American Revolution and the Articles of Confederation. Then he scrutinizes the Constitutional Convention, The Federalist Papers, and the Constitution-ratification debates in the states.
Yoo explains that the framers of our Constitution viewed foreign affairs as a component of the "executive Power" vested in the president by Article II, Section 1. Writers like Locke, Montesquieu, and Blackstone recognized that large deliberative assemblies lacked the institutional competence to manage what Locke described as "war, peace, leagues, and alliances." The framers reaffirmed those theories from personal experience, as the Continental Congress proved unable to act with unity of plan, secrecy, or speed and dispatch during the American Revolution.
In April 1790, Thomas Jefferson explained that the transaction of business with foreign nations was "executive altogether," and therefore — because "the executive Power" was expressly vested in the president — it was the prerogative of the president, save for the exceptions vested in the Senate, which were to be "construed strictly." Those exceptions included such things as the power "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." President Washington, Chief Justice John Jay, and Rep. James Madison endorsed this view, agreeing that the Senate had, in Washington's words, "no right to interfere" in this business save, again, for those narrowly construed exceptions.
Despite his bitter disagreement with Jefferson on many other issues, drawing on this same clause three years later, Alexander Hamilton remarked that "as the participation of the Senate in the making of Treaties, and the power of the Legislature to declare war, are exceptions out of the general 'Executive Power' vested in the President, they are to be construed strictly — and ought to be extended no further than is essential to their execution."
But even the best books on this intricate subject tend to be pocked with errors. In a single paragraph, Yoo asserts that President Truman sent troops into Korea in 1950 without seeking Congressional approval, and that President Johnson never obtained "unambiguous Congressional authorization" for Vietnam. In reality, once-top-secret State Department records reveal that Truman repeatedly sought to address a joint session of Congress and had Secretary of State Dean Acheson draft a resolution of authorization. But in repeated consultation, he was told by Tom Connally, chairman of the Senate Foreign Relations Committee; Scott Lucas, the majority leader; and other Congressional leaders that he had adequate authority under the Constitution and the Charter of the United Nations, and that he should stay away from Congress and make his presentation as a fireside chat rather than as a Congressional address. Truman acquiesced to the will of Congress.
And one of the many myths of the Vietnam War was that Congress never clearly authorized it. On the contrary, initially Congress was far more committed than was Johnson to using force to stop communist aggression in Southeast Asia — a policy first established during the Eisenhower administration when the Southeast Asian Collective Defense Treaty was ratified with the consent of an almost unanimous Senate. In August 1964, a 99.6-percent majority in Congress enacted the Southeast Asia Resolution authorizing the president to use armed force to assist South Vietnam, Laos, and Cambodia in defending their freedom. During the floor debate, Sen. J. William Fulbright, chairman of the Foreign Relations Committee, explained that Congress was authorizing the president to use such force as could lead to "war"; and Congress more than tripled Johnson's appropriations request on its own initiative. The authorization for war in Vietnam and Cambodia fully satisfied the requirements of Section 2(c)(2) of the War Powers Resolution, and for years Congress fueled the war by appropriating tens of billions of dollars by more than 90-percent majorities in each chamber....