President George W. Bush’s exercise of war powers since the attacks of September 11, 2001, have included the following:
Recent Supreme Court decisions have sought to restrict some of these powers, especially denial of access to civil courts for detainees that the president has characterized as “enemy combatants.”1 How the President and Congress will respond to those court decisions is as yet unclear.
All too often, discussions and debates about President Bush’s exercise of war powers during the current conflict have ignored or downplayed the historical-legal context of presidential powers during wartime or emergencies. When viewed in that context, they are less exceptional and less drastic than often portrayed.
To examine the exercise of presidential war and emergency powers it is necessary to review:
The Constitution and Founding Documents
In Federalist 70 and 74, Alexander Hamilton wrote about the need for “energy in the executive” that it is “essential to the protection…against foreign attacks.” The executive will need to exercise “decision, secrecy, and dispatch.” “Of all the cares or concerns of government,” he wrote, “the direction of war most peculiarly demands those qualities which distinguish the exercise of power” by the executive. In Federalist 23 Hamilton discussed the creation of a federal government “clothed with all the powers requisite to the complete execution of its trust.” Because “the circumstances which may affect the public safety are not reducible within certain determinate limits…it must be admitted as a necessary consequence that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficiency.” In Federalist 34, Hamilton stated that the federal government should possess “an indefinite power of providing for emergencies as they might arise.” And James Madison wrote in Federalist 41 that “security against foreign danger is one of the primitive objects of civil society…The powers requisite for attaining it must be effectually confided to the federal councils.”
Although the Founders gave Congress the power to “declare” war, they understood that this power did not constrain the President’s independent and constitutionally-based authority to use military force to protect the nation. An earlier draft of the Constitution gave Congress the power to “make” war, but the Convention changed the clause from “make” to “declare.” One supporter of the change noted that this would “leave to the Executive the power to repel sudden attacks.”2
The notion of broad presidential powers during wartime is further buttressed by the president’s paramount authority in foreign policy. The text and structure of the Constitution grants the president the leading, though not exclusive, role in conducting relations with other countries. In 1790, Thomas Jefferson opined that “the transaction of business with foreign nations is executive altogether; it belongs to [the executive], except as to such portions of it as are specially submitted to the Senate.”3 In 1800, John Marshall, the future Chief Justice, wrote that “the President is the sole organ of the nation in its external relations, and its sole representative with foreign nations…He possesses the whole Executive power. He holds and directs the force of the nation.”4 In 1937, the Supreme Court, in United States. v. Curtiss-Wright Corporation, noted “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.” When the president acts in the international field, the Court explained, he possesses “a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” The President, not Congress, wrote the Court, “has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war.”5 (Emphasis added).
One of the political theorists that the Framers looked to in constructing the new government was John Locke, who defined executive power as “the power to act according to discretion for the public good, without the prescription of law and sometimes even against it.”6
In 1798, Congress, with the support of President John Adams and in the midst of an undeclared naval war with France, passed the Alien and Sedition Acts. The laws empowered the president to remove aliens suspected of siding with France and to prosecute any person who publicly opposed the president’s policies toward France. Although Adams never signed a deportation order, his administration compiled lists of aliens to be deported and many aliens fled the country in fear of being deported. More than 20 people, including newspaper editors who opposed the president’s policies, were arrested for sedition and several were tried and convicted.
At the end of the War of 1812, just before the Battle of New Orleans and while the city was still under martial law, General Andrew Jackson, acting on behalf of President Madison, arrested and imprisoned a civilian newspaper writer for inciting mutiny among U.S. forces. A federal judge issued a writ of habeas corpus to free the writer, and Jackson responded by arresting the judge. The judge was subsequently set free, and the writer was tried and acquitted by a military tribunal.
In 1817, President James Monroe, in response to cross-border Indian raids, authorized General Jackson to pursue the raiders into Spanish Florida, where Jackson seized forts and towns, and deposed Spanish officials and replaced them with Americans. This broad military incursion into Spanish Florida, conducted without congressional authorization, combined with shrewd diplomatic maneuvering by Secretary of State John Quincy Adams, resulted in Spain ceding its Florida territory to the United States in the Transcontinental Treaty of 1819.
In 1846, without congressional approval, President James Polk provocatively ordered U.S. armed forces under General Zachary Taylor to proceed to the Rio Grande where they constructed a fort, blockaded the river, and threatened the Mexican town of Matamoros. U.S. and Mexican forces clashed, thus beginning the Mexican-American War, which Congress subsequently authorized.
Perhaps the broadest exercise of presidential war powers occurred during the Civil War. President Lincoln at the war’s outset unilaterally ordered a naval blockade of southern ports and the seizure of ships. The Supreme Court subsequently upheld Lincoln’s actions in The Prize Cases. The Court explained that, “Whether the President, in fulfilling his duties as Commander-in-Chief in suppressing an insurrection, has met with such armed hostile resistance and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted.” The president, wrote the Court, “must determine what degree of force the crisis demands.”8
On April 27, 1861, Lincoln suspended the writ of habeas corpus from Philadelphia to the District of Columbia. The next month, Chief Justice Roger Taney, serving on a lower federal court in the case of Ex Parte Merryman,9 ruled that Congress, not the President, was granted the power to suspend the writ by the Constitution. Lincoln simply ignored the Chief Justice’s ruling and on two subsequent occasions extended the territory covered by the suspension of the writ.
In the summer of 1861, Union military forces arrested more than a dozen Maryland state legislators who planned to vote for secession. That same year, Lincoln’s Postmaster General denied the use of the mails to several newspapers that did not support the Union war effort. In October 1861, Lincoln’s Secretary of State ordered a military guard placed on the residence of a federal judge and withheld the judge’s salary based on allegations in an unsigned letter that the judge thought that the rebels would seize the nation’s capital.
Early in the war, Lincoln’s Secretary of State bragged to a British official: “I can touch a bell on my right hand and order the imprisonment of a citizen of Ohio; I can touch a bell again and order the imprisonment of a citizen of New York; and no power on earth, except that of the President, can release them.”10 In all, Secretary of State Seward ordered the military arrest of more than 800 citizens. Secretary of War Stanton ordered the military arrest of more than 13,000 citizens during the war.
In 1862, U.S. Marshals were authorized to arrest and imprison “any person or persons who may be engaged by act, speech, or writing, in discouraging volunteer enlistments, or in any way giving aid and comfort to the enemy, or in any other disloyal practice against the United States.”11 In September of that year, the President issued a proclamation providing that persons “discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice affording comfort to the rebels” were subject to “trial and punishment by courts martial or military commissions.”12
In April 1863, Union General Burnside, acting under the authority of the Commander-in-Chief, issued an order in Ohio declaring that rebel sympathizers would be arrested, imprisoned, or banished from Union territory. Pursuant to that order, an Ohio state legislator and candidate for governor named Vallandigham was arrested for giving two speeches critical of President Lincoln. Vallandigham was tried and convicted by a military tribunal, and sentenced to prison. He challenged this action by the Lincoln administration and lost in the District Court. The Supreme Court refused to hear an appeal. Lincoln subsequently banished Vallandigham to Confederate territory.
Two years after the war, the Supreme Court, in Ex Parte Milligan,13 ruled that the president had overstepped his authority in prosecuting civilians in military tribunals in areas remote from warfare where civil courts were operating. The Milligan decision showed that the Court was willing to restrain the exercise of presidential war powers after the war had ended.
Lincoln revealed his broad concept of presidential war powers in a letter he wrote to a Kentucky newspaper editor in 1864. “My oath to preserve the Constitution to the best of my ability,” he wrote, “imposed upon me the duty of preserving, by every indispensable means, that government – that nation, of which the Constitution was the organic law.” “I felt,” Lincoln continued, “that measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation.”14
When the United States entered the First World War in 1917, Congress passed the Espionage Act, which made it a crime to willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military forces, and to obstruct the recruitment or enlistment of service in the U.S. military. The administration of President Woodrow Wilson charged more than two thousand persons under the Act, and convicted more than a thousand of them. In one such case that made it to the Supreme Court, Schenck v. United States, the defendant challenged his conviction for distributing leaflets that urged draftees to resist the draft. Justice Oliver Wendell Holmes, writing for a unanimous Court in upholding the conviction, explained that, “When a nation is at war many things which might be said in time of peace are such a hindrance to its efforts that their utterance will not be endured so long as men fight…No court could regard them as protected by constitutional right.”15 The famous Socialist leader Eugene Debs was similarly prosecuted and convicted under the Espionage Act, and the Supreme Court upheld Debs’ conviction, too.
During the war, Wilson, like Lincoln before him, also directed his Postmaster General to deny the use of the mails to several publications that criticized the war effort.
Even after the war, Wilson’s Attorney General, Mitchell Palmer, ordered a series of raids, arrests, interrogations, and deportations of suspected anarchists and communists in response to bombings in eight U.S. cities. Several defendants were also prosecuted under the Espionage Act for distributing pamphlets opposing U.S. intervention in Russia after the war.
After the Second World War broke out in Europe, President Franklin Roosevelt gradually, and without congressional authorization, placed the U.S. Navy on an aggressive war footing by extending the reach of American convoys to hostile waters and by ordering the fleet to aggressively “eliminate the threat” of attacks from German submarines or surface raiders. As one historian put it, “Six months before Pearl Harbor, lacking a declaration of war and without the knowledge of Congress or the American people, the Commander-in-Chief gave the Atlantic Fleet approval to change from defensive to offensive operations.”16
FDR also prepared for war on the home front. In the spring of 1940, the President “secretly authorized warrantless wiretapping inside the United States.” He did so despite the fact that his attorney general advised that such action was barred by the Communications Act of 1934. “I am convinced,” Roosevelt told Attorney General Robert Jackson, “that the Supreme Court never intended any dictum…to apply to grave matters involving the defense of the nation.” FDR stressed that wiretapping was necessary because it would be “too late to do anything about it after sabotage, assassinations and fifth column activities are completed.”17
After the Japanese attack on Pearl Harbor, and in response to pleas from governors, other officials (including California Attorney General Earl Warren), and opinion makers on the west coast where many defense plants and industries were located, Roosevelt issued Executive Orders authorizing curfews on persons of Japanese ancestry living on the west coast and their subsequent removal to camps further inland. This eventually affected more than 100,000 people. FDR’s actions were later supported by Congress, and in two cases that reached the Supreme Court, Hirabayashi and Korematsu, the curfew and removals were upheld as proper exercises of presidential (and congressional) war powers. “[T]he war power of the national government,” explained the Court, “is the power to wage war successfully.” “Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry,” the Court continued, “we cannot reject as unfounded the judgment of the military authorities and of congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained.” It “was not for the court to sit in review of the wisdom of the actions of the executive or of congress, or to substitute its judgment for theirs.”18
Reflecting on FDR’s attitude toward the Japanese curfew and removal policies, Francis Biddle, who served as FDR’s Attorney General, said: “I do not think he was much concerned with the gravity or implications of this step….What must be done to defend the country must be done.” Biddle further commented: “Nor do I think that the Constitutional difficulty plagued him. The Constitution has not greatly bothered any wartime President. That was a question of law, which ultimately the Supreme Court must decide. And meanwhile – probably a long meanwhile – we must get on with the war.”19
FDR also established military commissions to deal with the trial of Nazi saboteurs who secretly landed in New York and Florida intending to destroy factories and bridges. The saboteurs, including one U.S. citizen, were declared to be unlawful combatants, and were swiftly convicted and sentenced. Some of them were executed. This whole process was upheld by the Supreme Court in Ex Parte Quirin.20
Roosevelt also seized 60 privately owned and operated industries and plants in which labor disputes were determined to be jeopardizing or impeding the war effort.
On June 25, 1950, North Korean forces surged across the 38th Parallel, swiftly took the South Korean capital, and threatened to conquer the entire Korean peninsula. The United States had no treaty obligating it to come to the defense of South Korea; indeed, Secretary of State Acheson, in a speech in Washington, had recently excluded Korea from our Asian defense perimeter. President Truman, however, immediately ordered U.S. forces to intervene in the war. He did this without congressional authorization, relying on his constitutional power as Commander-in-Chief. Truman subsequently persuaded the United Nations (in the absence of the Soviet representative) to authorize his action and to appoint American General Douglas MacArthur as commander of all U.N. forces.
The President, to avoid interruption of war supplies and harm to the domestic economy threatened by labor disputes in the steel industry, ordered the Secretary of Commerce to seize the property of the steel industry in 1952. When the steel producers challenged the action, the Supreme Court, in Youngstown Sheet and Tube Co. v. Sawyer,21 ruled that the President lacked the constitutional power to unilaterally seize private property. The significance of the decision was somewhat lessened by the fact that there were seven separate opinions, and by the time the court issued the decision the war and the President were both very unpopular. The decision is best known for Justice Robert Jackson’s concurring opinion in which he set forth a formula for reviewing presidential power based on whether the President acts with the support of congress, when congress is silent, or in contravention of congress.
In 1954-55, President Eisenhower practiced “nuclear brinkmanship” over the disputed islands of Quemoy and Matsu in the Taiwan Strait. In 1957, Eisenhower announced that the independence of the countries of the Middle East was a vital national interest of the United States – the so-called “Eisenhower Doctrine.” Congress approved the doctrine by joint resolution, and in 1958, the president dispatched 15,000 troops to Lebanon, without specific congressional authorization, to protect U.S. interests in that country and region.
Eisenhower’s attitude toward emergency powers was revealed in a conversation he had with Winston Churchill when Churchill was visiting the United States during his second term as Prime Minister. Churchill asked the president how many communists were in the United States. Eisenhower replied that there were about 25,000, but that we knew where they were located and could pick them up in an emergency.22
In October 1962, President John F. Kennedy, without congressional authorization, imposed a naval blockade of Cuba, an act of war, after U.S. intelligence discovered the presence of offensive nuclear missiles on the island. Kennedy was also prepared to launch air strikes against the missile bases and to invade Cuba if necessary. Kennedy also sent 15,000 military “advisors” to South Vietnam to help that government resist subversive efforts by North Vietnam and the Viet Cong.
President Lyndon Johnson used a broadly worded congressional resolution (the Gulf of Tonkin Resolution) to wage war in Southeast Asia for four years. President Nixon continued to wage that war from 1969 to 1972-73. Each legal challenge to the constitutionality of the war in Southeast Asia was rejected, frequently on the basis of the “political question” doctrine where the courts defer to the political branches of government.23
In 1973, during the Yom Kippur War in the Middle East, President Nixon put our armed forces, including our nuclear forces, at the highest level of alert short of war in response to Soviet threats to send troops to intervene in the conflict against Israel.
President Jimmy Carter unilaterally ordered a military rescue operation in Iran in an effort to end the hostage crisis, and later declared that the United States would take military action to ensure the free flow of oil from the Persian Gulf. President Ronald Reagan invaded Grenada and overthrew the communist regime there, without congressional authorization. His successor, President George H.W. Bush, invaded Panama and pre-positioned a massive military force in Saudi Arabia to prepare for war, again without congressional authorization. President Bush waged the first Gulf War against Iraq with congressional and U.N. support, but without a congressional declaration of war. President Clinton intervened militarily in the Balkans and Somalia, and launched missile strikes, all without congressional authorization.
In 2002, the Foreign Intelligence Surveillance Act (FISA) Court, relying on an earlier Fourth Circuit Court case, stated unequivocally that the President has inherent constitutional powers to conduct warrantless searches to obtain foreign intelligence information, and that FISA could not encroach on that power.24
In 1810, Thomas Jefferson, at the end of his remarkable public career, wrote about the situation that sometimes confronts wartime presidents:
A strict observance of the written laws is doubtless one of the highest virtues of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.26
A Latin maxim says Inter arma silent leges, in time of war the laws are silent. Under our Constitution, as Chief Justice Rehnquist noted, “The laws will…not be silent in time of war, but they will speak with a somewhat different voice.”27
1. Boumediene v. Bush, 128 S.Ct. 2229 (2008); Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006); Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004).
25. Gabriel Schoenfeld, “In the Matter of George W. Bush v. the Constitution,” Commentary (June 2008), http://www.commentarymagazine.com/viewarticle.cfm/in-the-matter-of-george-w--bush-v--the-constitution