Presidential War Powers 1 Restoring the Balance: Restricting Presidential War Powers A controversy paper proposal for the 2013-14 CEDA season Dr. Kelly Young, Wayne State (OSOs) John Koch, Wayne State (Drones/UAV) Bruce Najor, Wayne State (Detention) Al Hiland, Minnesota (Covert Ops) Jacob Justice, Wayne State (Wiretapping) Brad Meloche, Wayne State (Preventive Intervention) Talya Slaw, Wayne State (UN/NATO Operations)
92
Embed
Restrict Presidential War Powers Controversy Paper
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
Presidential War Powers 1
Restoring the Balance: Restricting Presidential War Powers
A controversy paper proposal for the 2013-14 CEDA season
Dr. Kelly Young, Wayne State (OSOs)
John Koch, Wayne State (Drones/UAV)
Bruce Najor, Wayne State (Detention)
Al Hiland, Minnesota (Covert Ops)
Jacob Justice, Wayne State (Wiretapping)
Brad Meloche, Wayne State (Preventive Intervention)
IN MATTERS of foreign policy, Congress, and especially the Senate, was designed as a hedge against the
abuses exhibited by overeager European monarchs who for centuries had whimsically
entangled their countries in misguided adventures. America would not be such a place. The Constitution would protect our
governmental process from the overreach of a single executive who might otherwise succumb to the impulsive temptation to unilaterally risk our country’s blood, treasure and
international prestige. Congress was given the power to declare war and appropriate funds, thus
eliminating any resemblance to European-style monarchies when it came to the presidential
war power. Importantly and often forgotten these days, Article I, Section 8 of the Constitution was also carefully drawn to give Congress, not the president, certain
powers over the structure and use of the military. True, the president would act as commander in chief, but only in the sense that he would be executing policies shepherded
within the boundaries of legislative powers. In some cases his power is narrowed further by the requirement that he obtain the “Advice and Consent” of two-thirds of the
Senate. Congress, not the president, would “raise and support Armies,” with the Constitution limiting appropriations for such armies to no more than two years. This was a clear
signal that in our new country there would be no standing army to be sent off on foreign adventures at the whim of a pseudomonarch. The United States would not engage in
unchecked, perpetual military campaigns. Congress would also “provide and maintain a Navy,” with no time limit on such appropriations. This distinction between “raising” an
army and “maintaining” a navy marked a recognition of the reality that our country would need to protect vital sea-lanes as a matter of commercial and national security,
confront acts of piracy—the eighteenth-century equivalent of international terrorism—and act as a deterrent to large-scale war. Practical circumstances
have changed, but basic philosophical principles should not. We reluctantly became a global
military power in the aftermath of World War II, despite our initial effort to follow historical patterns and demobilize. NATO was not
established until 1949, and the 1950 invasion of South Korea surprised us. In the ensuing decades, the changing nature of
modern warfare, the growth of the military-industrial complex and national-security policies
in the wake of the Cold War all have contributed to a mammoth defense structure and an
atrophied role for Congress that would not have been recognizable when the Constitution was
written. And there is little doubt that Dwight D. Eisenhower, who led the vast Allied armies on the battlefields of Europe in World War
II and who later as president warned ominously of the growth of what he himself termed the “military-
industrial complex,” is now spinning in his tomb. Perhaps the greatest changes in our defense
posture and in the ever-decreasing role of Congress occurred in the years following the
terrorist attacks on U.S. soil of September 11, 2001. Powers quickly shifted to the presidency as the call
went up for centralized decision making in a traumatized nation where quick, decisive action
was considered necessary. It was considered politically dangerous and even unpatriotic to question this shift, lest one be accused of impeding national
safety during a time of war. Few dared to question the judgment of military leaders, many of whom were untested and almost all of whom followed the age-old axiom of
continually asking for more troops, more money and more authority. Members of Congress fell all over themselves to prove they were behind the troops and behind the wars.
Besides this general relinquishment of its constitutional responsibilities, Congress tends to hold a
“situational” view of constitutionalism, which supports and expands executive powers when one’s party
resides in the White House or in times of emergency and crisis.8 Thus, while Paul’s stand against the
6 Gene Healy, “10. Reclaiming the War Power,” Cato Handbook for Policymakers, 7th edition, 2009,
http://www.cato.org/cato-handbook-policymakers/cato-handbook-policymakers-7th-edition-2009 7 Cited in ibid.
8 Ibid.
Presidential War Powers 7
executive’s expansion of war powers was newsworthy, it is rather unlikely to radically alter the long
trend growth in presidential powers.
II. The Status Quo and the Central Controversy
A. The Status Quo & Uniqueness
What interested us in crafting a presidential war powers proposal in the first place was that the
central controversy surrounding the topic dominates the news today. Countless libertarian and
progressive critics have attacked Obama’s unchecked use of drone attacks, expansion of terrorist
targeting policy, and maintenance of the Guantanamo Bay detention center ever since he took office.
Despite hopes that the Obama administration would reverse a number of Bush Administration war on
terror (WoT) policies that massively increased the scope of presidential authority without congressional
oversight, Obama has merely tinkered with some details of those policies while increasing the use of
others.
Jack Goldsmith, Henry L. Shattuck Professor of Law at Harvard University, The
Accountable Presidency, THE NEW REPUBLIC (Feb. 1, 2010), http://www.tnr.com/article/books-
and-arts/the-accountable-presidency
The increasingly powerful but increasingly law-bound presidency is the key to understanding the remarkable extent to which
President Obama has continued the counterterrorism policies of his predecessor. Obama has cut
back the Bush program on interrogation and black sites, though not as much as most people
think. He has supported tiny congressional modifications to military commissions, but he has
persisted in their use. He has controversially insisted on a civilian trial for Khalid Shaikh
Mohammed, but this is less of a change than critics suggest, as the Bush administration often
used civilian trials for terrorists, including the September 11 plotter Zacarias Moussaoui, the Al Qaeda agent José
Padilla, the “shoebomber” Richard Reid, and the “American Taliban” John Walker Lindh. Obama has replicated Bush’s
legal arguments concerning detention, habeas corpus, and state secrets. And he has
embraced, and indeed ramped up, the Bush approach to targeted killing and rendition.
Because of the Obama administration’s embrace of expanded presidential powers, the status quo
remains strongly in favor of high executive authority. Additionally, it remains highly unlikely that any
meaningful action will be taken in the status quo to reduce presidential powers. In Congress, there is
widespread fear that any opposition to the President will be highly unpopular with the public and that
Congress will be held accountable for any future security problems or failures. Even when highly
controversial policies like Guantanamo Bay, Abu Ghraib, and “black” detention sites are discussed in
Congress, little to no meaningful action was taken in response.9 Additionally, in 40 years, federal courts
have consistently refused to side either way in these War Power Resolution (WPR) balance of power
9 Christopher Schroeder, “Loaded Dice and Other Problems: A Further Reflection on the Statutory Commander in
Chief,” Indiana Law Journal, Fall, 2005, pp. LN.
Presidential War Powers 8
disputes.10 Even recently, when the Supreme Court made three decisions – Hamdi v. Rumsfeld, Rumsfeld
v. Padilla, and Rasul v. Bush – that examined the Bush administration’s claim that Commander in Chief
powers allowed the administration to ignore congressional limitations on executive powers, these
decisions either did not reject the Bush administration’s justification or they simply turned aside the
question without reason why. As a result, the Court’s decisions have had little impact on the balance of
power regarding war powers.11
And this is part of a long historical trend. As Peter Coffman, an attorney for the US Department
of Justice, summarizes the issues involved (which highlight the broad advantage and disadvantage
ground of the topic – democratic balance of powers vs. strong presidency acting swiftly on national
security matters) and the uniqueness of the debate about Commander-in-Chief powers, the debate
between proponents and opponents12 of strong presidential powers has not been resolved and the
uniqueness question is rather clear for this topic:
Peter D. Coffman, attorney, US Depart of Justice, 1995, BOOK REVIEW: POWER AND DUTY:
THE LANGUAGE OF THE WAR POWER War and Responsibility: Constitutional Lessons of Vietnam
and its Aftermath. By John Hart Ely, Cornell Law Review, May, pp. LN.
Since the Korean War, voices inside and outside of government have decried presidentially
initiated military action in Haiti, Somalia, the Persian Gulf, Panama, the Gulf of Sidra, Lebanon, the Dominican Republic,
Indochina, and elsewhere n1 as encroachments on Congress's "Power ... to declare War." n2 Others
perceive not presidents actively usurping legislative power but rather an acquiescent Congress
"sitting back and letting the President act in its place." n3 On the other hand, proponents of
presidential power have argued that the President holds, through practice or necessity, an
inherent power to [*1237] initiate war in a variety of circumstances, and that an aggressive
Congress treads on that right. n4 As Justice Jackson noted in 1951, the boundary dispute between
Congress and the President in foreign affairs is not a recent development: A century and a half
of partisan debate and scholarly speculation yields no net result but only supplies more or less
apt quotations from respected sources on each side of any question. They largely cancel each
other. And court decisions are indecisive because of the judicial practice of dealing with the
largest questions in the most narrow way. n5 Neither side has moved the dispute substantially
closer to a resolution in succeeding years. n6 Congressional proponents continue to rely upon
the specific constitutional grant of the "decisional" n7 war power and the record of debates
upon this grant at the Constitutional Convention. n8 Supporters of presidential initiative
counter with the textual grants of the Executive power and the Commander-in-Chief role to
the President, buttressed with realist arguments about the necessity of [*1238] a strong
10
Ibid. 11 David J. Barron, Professor of Law, Harvard Law School, & Martin S. Lederman, Visiting Professor of Law,
Georgetown University Law Center, “THE COMMANDER IN CHIEF AT THE LOWEST EBB - FRAMING THE PROBLEM,
DOCTRINE, AND ORIGINAL UNDERSTANDING,” Harvard Law Review, January 2008, pp. LN. 12
Some review of the debate between strong president proponents/opponents is found Robert Bejesky, “WAR
POWERS PURSUANT TO FALSE PERCEPTIONS AND ASYMMETRIC INFORMATION IN THE "ZONE OF TWILIGHT", St.
Mary’s Law Journal, 2012, pp. LN.
Presidential War Powers 9
Presidency in the modern world. n9 Supreme Court jurisprudence has not conclusively placed
any of these argumentative gambits off limits. n10 As a result, ample numbers of intelligent lawyers continue to
hold each position on the basis of "respected [legal] sources on each side of [the] question."
Consequently, the controversy is both timely and involves a broad range of potential affirmative ground
advocated by both the staunchest of conservative constitutionalists to ultra-liberal critics of the security-
state. The negative is dominated by national security hawks and advocates of a strong presidency who
demand that any and all action be taken to counter contemporary threats of global terrorism and
weapons of mass destruction (WMD) proliferation. As such, there is a clear, robust, and distinct
controversy that has a consistent status quo and uniqueness.
B. Stakes of the Controversy
The heart of the controversy is whether or not we should have a strong executive branch that
can execute foreign policy and war decisions in a rapid and unhindered manner or if we should have a
stronger balance of powers between the executive, legislative, and judicial branches over these matters.
According to Andru Wall, Senior Associate with Alston & Bird LLP and former senior legal advisor for U.S.
Special Operations Command Central in 2011, the debate about the scope of presidential authority
remains highly controversial because it involves many of the most contentious constitutional issues:
This Constitutional separation or balancing of power between the President and Congress with respect to war powers sparked
intense debate nearly as soon as the Constitution was ratified. Discussions of the President's constitutional
authority as commander in chief implicate "some of the most difficult, unresolved, and
contested issues in constitutional law." n31 This debate is perhaps best pictured as a Venn
diagram: some assert a circle of "inherent" Presidential power, some favor a circle of
Congressional checks on "imperial" Presidential power, while others see a Constitutional
overlap or balancing of powers between the two branches. One scholar astutely observes that "[w]riters
on the relative powers of the presidency versus the Congress almost invariably lapse into
advocacy when they comment on the textual, historical or functional bases of war powers." 13
As Wall notes, central to this debate is the appropriate constitutional balance of power between the
executive and legislature. Beginning with executive actions taken during Thomas Jefferson’s Barbary
Wars, James Madison’s War of 1812, and the Civil War, there has been a constant struggle between the
executive and congress over the appropriate balance between the two branches in foreign and war
policy.14 Following World War II, Congress largely acquiesced to the continued expansion of presidential
power that lead to the Korean and Vietnam wars. However, as a result of the Vietnam War, Congress
13
“Demystifying the Title 10-Title 50 Debate: Distinguishing Military Operations, Intelligence Activities & Covert
Action,” Harvard National Security Journal, http://harvardnsj.org/wp-content/uploads/2012/01/Vol.-3_Wall1.pdf. 14
Daniel C. Diller & Stephen H. Wirls, “Chapter 4: Commander in Chief,” in Powers of the Presidency (2nd
ed.),
Washington, D.C.: Congressional Quarterly, 1997, p. 166-169.
Presidential War Powers 10
enacted the War Powers Resolution (WPR)15 (HJ Res. 542, PL 93-148) in November 1973, overriding
President Nixon’s veto, in order to “reassert its constitutional prerogative to authorize all significant
military engagements.”16 As the “centerpiece of Congress’s effort to claim a role in foreign policy,” the
WPR,
requires the Executive to consult with Congress prior to the use of military force and to report to
Congress within forty-eight hours of the start of hostilities. More importantly, the WPR requires
the Executive to terminate the use of force (1) after sixty days if Congress has not subsequently
ratified that use of force, or (2) even earlier if Congress passes a resolution requiring
termination.17
Yet, even this joint resolution was opposed by both conservatives and liberals. Liberal critics maintained
that the WPR enhanced rather than restricted presidential power by given the president sanction to use
military power for almost any use for up to ninety days.18 Conservatives argued that the WPR restricted
presidential foreign policymaking too much, reducing necessary flexibility in a constantly changing
strategic environment.19 Even today, almost 40 years after its enactment, the WPR remains a source of
constant controversy over presidential authority. As Richard Grimmett, specialist in international
security, explains in 2012,
Richard Grimmett, 2012, “The War Powers Resolution: After Thirty-Eight Years,” Congressional
Research Service, Sept 24, www.fas.org/sgp/crs/natsec/R42699.pdf.
The record of the War Powers Resolution since its enactment has been mixed, and after 30 years it
remains controversial. Some Members of Congress believe the Resolution has on some occasions
served as a restraint on the use of armed forces by Presidents, provided a mode of communication, and
given Congress a vehicle for asserting its war powers. Others have sought to amend the
Resolution because they believe it has failed to assure a congressional voice in committing
U.S. troops to potential conflicts abroad. Others in Congress, along with executive branch officials, contend
that the President needs more flexibility in the conduct of foreign policy and that the time
limitation in the War Powers Resolution is unconstitutional and impractical. Some have argued for
its repeal.
Thus, debates about reducing presidential power would provide a critical examination of one of the
most fundamental controversies in government policymaking and constitutional checks and balances.
15
The WPR is often referred to as the War Powers Act, the name of the Senate legislation that was passed, even
though it was passed as a Joint Resolution that became the WPR. 16
Diller & Wirls, 177. 17
Michael Benjamin Weiner, 2007, “A Paper Tiger with Bite: A Defense of the War Powers Resolution,” Vanderbilt
Jrnl of Transnatl Law, pp. LN. 18
Diller & Wirls, 179. 19
Richard Grimmett, 2012, “The War Powers Resolution: After Thirty-Eight Years,” Congressional Research Service,
Sept 24, www.fas.org/sgp/crs/natsec/R42699.pdf.
Presidential War Powers 11
Given that presidential powers over foreign policy and war have steadily increased since the
founding of this country, what is the danger of the contemporary expansion of authority since 9-11? At
a broad level, the entire system of checks and balances and separation of powers between the three
federal branches that serve as a check to tyranny, unlimited federal power, and imperial ambition.20
These unchecked powers threaten due process, the nation’s democratic design, and risk a never ending
state of warfare. As von Hoffman explains,
Constantine von Hoffman, February 07, 2013, “Secret Wars—Cyber or Otherwise—
Overall, the stakes of the controversy – both the advantage and disadvantage (the disadvantage
is outlined in more detail later in the document) –are best summarized by Seth Weinberger:
Seth Weinberger, Assistant Professor in the Department of Politics and
Government at the University of Puget Sound, “Balancing War Powers in an Age of
Terror,” The Good Society, Volume 18, Number 2, 2009 (Proquest)
The question of allocating war powers between the president and Congress is a critical one. If
too much power is concentrated in the hands of the executive, the country risks undermining
basic constitutional protections of individual freedoms and eroding the democratic nature of
the republic; if too much of a role is given to Congress, the country may not be able to
effectively develop policies to protect itself. And when there is no clear theory guiding the actions of the
government, policy muddles along, with the executive branch taking the lead by putting an idea into action and hoping that it will
withstand judicial scrutiny. Thus there is a need for a balanced theory of war powers that respects the constitutional allocation of
power and heeds the advice of President Ford.
III. Mainstream options for policy change –Limitations/Restrictions on
Presidential War Powers
A. Statutory Limitations or Restrictions as a Mechanism
The literature on reducing presidential war powers outlines two basic approaches to limiting the
use of these powers: (1) create new limitations or restrictions on the president’s war powers (or new
judicial interpretation of existing statutes); and (2) use Congress’s power of the purse to eliminate
funding for unauthorized presidential military operations. Because eliminating funding is at best
reactionary (although it might serve as potential counterplan ground), we focus on the first approach –
creating new statutory limitations on presidential power. While this will be discussed more at length in a
later discussion about agents, we largely focus on congressional action for simplicity and because much
of the literature discusses this agent. But this in no way should be read to exclude judicial
interpretations of statutory limitations that would limit presidential war powers. Indeed, we contend
that a potential resolution should allow for both congressional and judicial response.
There is a very healthy debate in peer-reviewed journals about structural limits on executive war
powers and legal experts come down fairly strongly both for and against these restraints.23 A debate
focused on the mechanism of increasing statutory regulations on presidential war powers does not
23
A fascinating part of the controversy is simply the broader solvency debate about whether structural limits,
when actually put into place, actually constrain presidential action. E.g., arguing that structural limits do not work,
see Deborah Pearlstein, Visiting Scholar, Woodrow Wilson School for Public and International Affairs, Princeton
University; Director, U.S. Law and Security Program, Human Rights First, 2005 “Finding Effective Constraints on
Executive Power: Interrogation, Detention, and Torture,” Indiana Law Journal, Fall, 2005, pp. LN. For arguments
that structural limitations succeed, see Matthew Fleischman, “A FUNCTIONAL DISTRIBUTION OF WAR POWERS,”
New York University Journal of Legislation and Public Policy, 2010, pp. LN.
Presidential War Powers 13
challenge the president’s inherent authority to respond to national security matters. However, it does
raise an important debate about how to appropriate share and regulate military and foreign affair duties
between the executive and legislative branches. As Neil Kinkopf contends,
Neil Kinkopf, Associate Professor, Georgia State University College of Law, 2005,
“The Statutory Commander in Chief,” Indiana Law Journal, Fall, pp. LN.
The first constitutional question one must ask when interpreting the extent of presidential
power over military and foreign affairs is how to read the Constitution's allocation of powers
between the President and Congress. There are two possible [*1170] approaches: one focuses on
the way the Constitution divides power among the branches and reads those powers as
separate and distinct--call this the exclusivity model; the other focuses on the way the
Constitution contemplates that power will be shared among the branches--the reciprocity
model. For example, the Constitution grants the President some powers relating to war--notably the commander-in-chief power--and grants others to Congress, such as
the power to make rules for the regulation and government of the land and naval forces. The exclusivity view reads these as separate and distinct powers, which means that
Congress may not make rules and regulations that burden the President's ability to act as commander in chief. The reciprocity model views these
powers as components of a shared war power. The Constitution, on this view, means for the
President and Congress each to wield aspects of the war power, which means that the powers should be understood in a
way that accommodates the exercise of each and recognizes that they overlap and interrelate. While debate over these competing conceptions stretches back to our early
constitutional history, n2 the reciprocity model has come to be accepted as the appropriate way to
approach questions of power. n3 The model has its most famous articulation in Justice Jackson's concurring opinion in Youngstown Sheet & Tube. n4
"While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins
upon its branches separateness but interdependence, autonomy but reciprocity." n5 The reciprocity model follows from James Madison's formulation of the principle of
separation of powers. Those opposing the ratification of the Constitution argued that the document mingled powers among the President and Congress, thus violating the
principle. Madison rejoined that this objection misapprehends the separation of powers principle. The separation of powers principle does not forbid the blending of power
between the branches: [Montesquieu] did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his
own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is
exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. n6 [*1171] Nevertheless,
the exclusivity model occasionally rears its head. Most notoriously, the Department of Justice employed this model in its original Torture Memo. n7 In that memorandum, the
Office of Legal Counsel (OLC) opined that the anti-torture statute could not prohibit the President from ordering the use of torture in interrogations of enemy combatants,
because such a prohibition would violate the President's constitutional powers. OLC opined that the Constitution assigns the war power to the President. n8 It failed even to cite
to Justice Jackson's seminal opinion from Youngstown. This is no mere violation of citation etiquette, for it led OLC to fail to acknowledge that Congress has any relevant
authority whatsoever. Had OLC employed Justice Jackson's framework, OLC would have been unable to avoid recognizing Congress's relevant powers, including the power to
make rules to govern the military and to define and punish violations of the law of war. As there is no plausible interpretation that these powers are irrelevant to the validity of
the prohibition on torture, the application of the correct interpretive model--reciprocity rather than exclusivity--has decisive significance. Despite the apparent resolution in
favor of the reciprocity model, OLC has continued to apply the exclusivity model. Although the Department of Justice eventually withdrew the Torture Memo, n9 OLC continues
to invest the dispute with significance by following the exclusivity model. The memorandum withdrawing the Torture Memo rescinds the section dealing with the President's
commander-in-chief power only because it regards the discussion to have been unnecessary. n10 The withdrawing memo, however, does not repudiate or even question the
substance of the Torture Memo's reasoning on the issue of presidential power. Moreover, contemporaneous OLC opinions--which have been neither repudiated nor withdrawn-
-continue to employ the exclusive approach to presidential power. The continuing salience of the controversy over how to
construe the President's powers relating to foreign and military affairs has been most recently
highlighted in the debate over the legal validity of President Bush's domestic surveillance
program. The particulars of the program remain secret, but the broad parameters pose the issues quite starkly. The President has authorized the National Security
Agency (NSA) to engage in domestic surveillance by wire-tapping communications between persons within the United States (including, but not limited to, United States citizens)
and persons outside the United States where one party to the communication is "linked to al Qaeda or related terrorist organizations." n11 The Justice
Department has taken the position that [*1172] the President has "inherent constitutional
authority" to engage in surveillance designed to protect national security. n12 This much is, or
should be, uncontroversial. It is widely accepted that the President holds a protective power
n13 to respond to emergencies that threaten national security. What is controversial is the
claim that this power is exclusive and not subject to regulation or limitation. This assertion was
the foundation of the Torture Memo n14 and underlies the Justice Department's defense of the
domestic surveillance program. The domestic surveillance program directly implicates the
controversy over the nature of the President's inherent constitutional powers because it runs
afoul of a specific statutory prohibition , the Foreign Intelligence Surveillance Act (FISA). FISA is a
comprehensive regulation of electronic surveillance within the United States. FISA requires that the government acquire a warrant from a special court (the Foreign Intelligence
Surveillance Court) before undertaking any electronic surveillance within the United States. n15 By the terms of the act, FISA is the "exclusive means by which electronic
surveillance . . . may be conducted." n16 FISA sets forth several categories of exception to the warrant requirement, and the nature of these exceptions underscores FISA's
comprehensive scope. For example, FISA specifically addresses itself to the context of wartime surveillance, authorizing warrantless searches for a fifteen-day period after war is
declared. n17 Moreover, FISA provides that in an emergency situation, surveillance may commence before a warrant is obtained, as long as a warrant application is made within
Presidential War Powers 14
seventy-two hours after surveillance is initiated. n18 If the President's inherent authority to engage in national security
surveillance is exclusive, in that it is not susceptible to statutory regulation , then FISA is
unconstitutional in requiring that such surveillance be conducted only pursuant to a warrant.
If, on the other hand, the President's inherent power is not exclusive, Congress retains power
to impose regulations that apply to the President's exercise of his authority . Here, Congress
has authority to regulate the instrumentalities of interstate and foreign commerce, which
paradigmatically include lines of communication such as cell phones, telephones, and email. n19
Moreover, the agencies that the President would deploy to conduct the surveillance are created and structured by Congress pursuant to its substantive powers generally under
Article I, Section 8, and especially under the [*1173] Necessary and Proper Clause. n20 Congress is empowered by these authorities to determine how those agencies will and
will not operate. Under a reciprocal understanding of constitutional power, the appropriate inquiry is suggested by Justice Jackson's concurring opinion in Youngstown Sheet &
Tube Co. v. Sawyer. "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only
upon his own constitutional powers minus any constitutional powers of Congress over the matter." n21 The Supreme Court refined this inquiry
in Morrison v. Olson, asking whether the statute in question "disrupts the proper balance
between the coordinate branches by preventing the Executive Branch from accomplishing its
constitutionally assigned functions." n22 Given the secrecy of the NSA surveillance program, it is impossible to offer a definitive conclusion to
this question. Nevertheless, none of the Bush Administration's burgeoning attempts to defend the program would satisfy the standard. n23
While Article II, Section Two of the U.S. Constitution establishes the broad parameters of presidential
war powers, they are not defined with much specific detail. For instance, the Commander in Chief
powers are described as: “The President shall be Commander in Chief of the Army and Navy of the
United States, and of the Militia of the several States.” Because of this, statutes are what define the full
extent and limits of presidential authority. As Kinkopf continues,
Neil Kinkopf, Associate Professor, Georgia State University College of Law, 2005,
“The Statutory Commander in Chief,” Indiana Law Journal, Fall, pp. LN.
This symposium asks us to consider the scope and limits of presidential power in the context of war and terrorism. This question
strongly suggests a constitutional focus. n1 Because the Constitution establishes the presidential office and sets forth its powers and
duties, it is the appropriate starting point for considering this question. The Constitution alone, however, does not get us very far.
A wide range of statutes bear on the President's power in this realm and serve to define the
extent and limits of his power . As a practical matter, then, the question of presidential power in the
context of war and terrorism is one of statutory interpretation. Recognizing the centrality of statutory
interpretation in this crucial area, a number of scholars have turned their attention to this question. From
their writings, a consensus appears to be emerging on some important foundational points. First,
these scholars claim that the President is entitled to deference. Second, where assertions of presidential power
implicate individual constitutional rights, these scholars claim that the President's assertion
must be founded on a statute that includes a clear statement of authority.
Courts can apply statutory restrictions by interpreting laws in ways to now apply to current war powers.
David J. Barron, Professor of Law, Harvard Law School, & Martin S. Lederman,
Visiting Professor of Law, Georgetown University Law Center, 2008, “THE
COMMANDER IN CHIEF AT THE LOWEST EBB - FRAMING THE PROBLEM, DOCTRINE, AND
ORIGINAL UNDERSTANDING,” Harvard Law Review, January, pp. LN.
4. Judicial Enforcement of Implied Statutory Restrictions. - The way the Supreme Court
approaches war powers generally, when combined with the increased mass of potentially
relevant legislative restrictions on the conduct of this military conflict, further increases the
Presidential War Powers 15
likelihood that the "lowest ebb" issue will be joined in the future. Principles of deference to executive
authority tend to dominate academic discussion of statutory interpretation and war powers. As we have indicated, however,
Hamdan, Youngstown, and other modern war powers cases demonstrate that the Court cannot be counted on to give the President
the benefit of the doubt. And in many war powers cases, the Court has been perfectly willing to
construe ambiguous statutory language against certain background rules that it presumes
Congress intended to honor, n84 including a presumption that the Executive must [*719] comply with the laws of war.
n85 This general and longstanding judicial willingness to find implied limitations in ambiguous
texts concerning the use of military force and national security powers is sometimes
controversial. But whether justified or not, such an interpretive approach is of particular import now,
given the sheer mass of preexisting statutes potentially applicable to the conflict with al
Qaeda and the likelihood that this body of law will grow. Executive branch lawyers may be hard-pressed to advise their client
agencies that creative construction can overcome the apparent statutory restrictions, at least if there is a reasonable prospect of
judicial review (as there often will be in the war on terrorism due to its peculiar domestic connections). Instead, the prospect of
judicial review will impel these lawyers to advise that the courts could well construe the potentially restrictive
language to impose hard constraints on the Executive's preferred course of conduct - and that only
the assertion of a superseding constitutional power of the President could, possibly, overcome such limits. Thus, the relatively weak
deference the Court has long shown the President in many war powers cases, when combined with the relatively high likelihood in
the war on terrorism of the applicability of restrictive but ambiguous statutory language and a justiciable case to hear, make
constitutional assertions of preclusive executive powers a more likely occurrence than war powers scholarship typically assumes.
Although the status quo has a number of statutory limitations on presidential war powers, these
restrictions are ineffective due to political compromises made during their crafting. This is why an
academic debate about what should be the limits on presidential power rather than what would they be
is worthwhile.
Christopher Schroeder, Charles S. Murphy Professor of Law and Professor of
Public Policy Studies, Director of the Program in Public Law, Duke University,
2005, “Loaded Dice and Other Problems: A Further Reflection on the Statutory Commander in
Chief,” Indiana Law Journal, Fall, pp. LN.
When Congress has the political will to take a more proactive approach to problems in the
areas of foreign and military affairs, it often does not fare much better in establishing parity in
any supposed partnership with the President. As already noted, legislation is the product of
compromises, and Presidents almost always have supporters within the legislative chambers
who will work with the President's forces to push for such compromises. Occasionally, political
stars may align to produce a genuinely reciprocal arrangement, as they did when the Foreign Intelligence
Surveillance Act (FISA) was enacted with the full support of President Carter and his Attorney General, Griffin Bell. n28 Such
moments, however, are extremely rare. Much more common are situations like enactment of
the War Powers Resolution. n29 Because [*1330] presidential opposition prompted
compromises, the Resolution did not accomplish its objective (whatever one might think of its merits),
namely to "put the pressure where it should be--on the [P]resident to start thinking about removing armed forces sixty days after he
has committed them to a hostile situation;" instead it "puts pressure on Congress to declare that United States forces are 'in
hostilities' in order to trigger the sixty-day clock for troop removal." n30
B. Broad Statutory Approaches to Restrict the Use of War Powers
More specific statutory limitations that can be placed on the use of executive war authority will
be discussed in more detail after this section of the paper. However, we would like to begin by listing
what some broad proposals to limit the use of presidential war powers would look like. While the
Presidential War Powers 16
examples here are in the context of reforming the WPR, they also represent most of the mainstream
policy options for limiting presidential war powers.
1) Return to the original Senate version of the WPR and eliminate the delay before presidential
notification or declaration of war. This would require prior notification to and authorization by
Congress to any use of U.S. military forces without a declaration of war except to prevent a
direct attack on the U.S. or its forces abroad. In particular, noted foreign policy experts Leslie
Gelb and Anne-Marie Slaughter, among others, suggest this option.24
2) Shorten the Time Limitation before Consultation. Rather than eliminating the time period over
which the president can maintain forces in a conflict without congressional approval, some
scholars call for shortening that time period from 60 to 30 days.25
3) Increase oversight/create a permanent consultation group in Congress for war powers issues.
Senators Byrd, Nunn, Warner, and Mitchell have proposed such an option.26 In the specific
context of UAV drone strikes, mainstream proposals for change include creating a “drone court”
with the federal judiciary or a permanent congressional committee, like the oversight created by
the Foreign Intelligence and Surveillance Act (FISA), to review executive decisions about drone
targets and deployment.27
4) Create legal standing for members of Congress to sue the executive for violations of the WPR.
This option would allow any member of Congress to bring an action in the U.S. District Court for
the District of Columbia for judgment and injunctive relief on the grounds that the President or
U.S. forces have violated the WPR. In the status quo, courts routinely reject such cases on the
grounds that they lack standing to sue.28
5) Repeal parts or all of PL 107-40, the 2001 Authorization for Use of Military Force (AUMF), the
congressional consent to the Bush and now Obama administration to use all necessary military
force to fight the War on Terror. The AUMF has been used to as evidence of congressional
consent for most of the presidential powers discussed in this paper. For instance, Representative
Barbara Lee (D-CA) introduced H.R. 198, a measure to repeal the AUMF.29 Our discussion of
UAVs/drones also discusses this as a solvency mechanism. Parts or the entirety of this AUMF can
be revised or repealed.
24
“Declare War: It's time to stop slipping into armed conflict,” Foreign Affairs, Nov 2005,
http://www.theatlantic.com/magazine/archive/2005/11/declare-war/304301/. Also see Gene Healy, “10.
Reclaiming the War Power,” Cato Handbook for Policymakers, 2009, 7th edition, http://www.cato.org/cato-
But U.S. senators are now floating the idea of an assassination court as a way to rein in the
ever-expanding drone program -- a secretive operation that, as it is, sounds like thriller fiction, but isn't. ¶ The idea was
bandied about during Thursday's confirmation hearing for CIA director nominee John Brennan, who fueled the talk by saying he thinks the concept is "worthy of discussion." The nominee, as a vocal supporter of the targeted-killing program, has come under scrutiny for what
some lawmakers see as the administration's unchecked power to kill, even if the target is an American citizen. ¶ Sen. Dianne
Feinstein, D-Calif., chairwoman of the Senate Intelligence Committee, said as part of an effort to regulate the
killing, she wants to review proposals to create something similar to the Foreign Intelligence
Surveillance Court -- which reviews requests for wiretaps against suspected foreign agents --
for drone strikes. ¶ Sen. Angus King, I-Maine, is pushing the idea the hardest. ¶ According to his vision, the drone court
would be an avenue for U.S. officials to argue in secret before a judge why an American citizen
should be targeted for death. He said it would be like "going to a court for a warrant" and
proving probable cause. ¶ Except in this case, the judge would be ruling not on a search warrant or a wiretap -- but a missile
strike from thousands of feet in the air, and thousands of miles away.
As can be seen then, there are several potential and nuanced solvency mechanisms for the affirmative
to defend.
Additionally, the literature points to several potential advantages to limiting the use of drones.
For instance,
Presidential War Powers 20
Boyle 6/11/12 (Michael, Writer for The Guardian, http://www.guardian.co.uk/commentisfree/2012/jun/11/obama-drone-
wars-normalisation-extrajudicial-killing) But such a portrayal conflates a tactical victory (killing one al-Qaida commander) with a strategic success (that is, dampening the
growth of extremist movements in Afghanistan and Pakistan). It also rarely looks at the other side of the ledger
and asks whether the drone strikes have jeopardized the stability of the governments of
Pakistan and Yemen, possibly risking more chaos if they are overthrown.¶ During his first presidential
campaign, Obama promised to control counterterrorism operations and to put them in their
proper place as one piece of a wider set of relationships with other governments. But he has
done the opposite, allowing short-term tactical victories against terrorist networks to
overwhelm America's wider strategic priorities and leave its relations with key governments in
a parlous state. His embrace of drones and his willingness to shoot first may also be policies
that the US comes to regret when its rivals, such as China begin to develop and use their own
drones.¶ Beyond simply failing to live up to campaign promises, the real tragedy of Obama's counterterrorism policy is that he has
squandered an unprecedented opportunity to redefine the struggle against al-Qaida in a way that moves decisively beyond the Bush
administration's mindset. Instead, he has provided another iteration of that approach, with a level of cold-blooded ruthlessness and
a contempt for the constitutional limits imposed on executive power that rivals his predecessor.
There is also strong evidence suggesting that the United States needs to set a precedent for use of
drones before other countries, such as China, develop the technology and use them in as loose a
manner as we have in the last decade.35 This drone technology proliferation could cause India to attack
suspected terrorists in Kashmir, China to strike Uighur separatists, or Iran to attack Baluchi nationalists
in Pakistan.36
Drones fuel dangerous anti-American sentiment and destroy our human rights and U.S. soft-
power credibility.
Morely 6/12/2012 (Jefferson, Salon Staff and Former Washing Post World News Editor,
The biggest danger that the United States now faces as a result of the drone war is not an al-
Qaida attack on U.S. civilians (though that remains a possibility) but a Pakistani defection from the U.S. war on
the Taliban as the U.S. prepares to withdraw from Afghanistan in 2014. In Pakistani public discourse, Obama’s America is fast replacing India as the country’s leading
enemy. When Defense Secretary Leon Panetta said in India last week that the United States was reaching the “limits of its patience” with Pakistan, the pro-American Dawn
newspaper in Islamabad responded that the feeling was mutual: The language the secretary has used, in the locations he has chosen to use it, only runs the risk
of making Pakistan’s security establishment more intransigent and paranoid and will become
fodder for right-wing forces propagating anti-India and anti-America opinions. All of which will
only make it tougher for the Pakistani government to cooperate with the U.S. That’s a polite way to put it.
Less polite Pakistanis are talking about shooting down a U.S. drone — an act of war against the United States. As Slate explained last week, “Pakistan talks about shooting down
a drone but never does.” In December, Pakistan’s Army Chief of Staff Gen. Ashfaq Pervez Kayani let it be known that he had issued multiple directives to shoot down U.S. drones,
which did not happen. In February, populist presidential contender Imran Kahn said his government would shoot down drones, a promise that doesn’t seem to worry U.S.
officials yet. Last week, Dr. Abdul Qadeer Khan, a national hero for founding Pakistan’s nuclear program, said that U.S. drones could be shot down with a Hamza missile, a staple
of Pakistan’s air arsenal. Americans may dismiss all of this as bluffing, and so far it has been. But we have seen many examples of “green on blue” violence where U.S.-trained
Afghan soldiers have turned their guns on their putative American friends with deadly results. The Obama administration seems to assume the Pakistanis, individually or
collectively, will not do such a thing because it would jeopardize U.S. military aid. But with Panetta (and Congress) saying U.S. aid to Pakistan is already in jeopardy, that
assumption is growing more dubious. Obama’s drone war has made this dysfunctional relationship more
35
Micah Zenko “Reforming U.S. Drone Strike Policies,” Council on Foreign Relations Special Report, Jan 2013,
The postmodernization of war thus pertains to the increasing displacement of humans by
technology, and the next phase of technowar will probably reveal more "smart machines"
supplementing and even replacing human beings. The 1991 Gulf intervention, the 1999 NATO war against Serbia, the 2001 Afghan
war, and second Iraq war of 2003, still raging despite Bush’s claim of “Mission Accomplished in May 2003, saw a widespread exploiting of drones, pilotless planes engaged as
decoys and as instruments of surveillance, in addition to Cruise missiles and other “smart” weapons. The U.S. military is developing "unmanned" technologies for ground, air,
and undersea vehicles. Smart tanks are already under production and as Chris Hables Gray (1989, 54) notes in Les Levidow and Kevin Robin’s book Cyborg Worlds: There are
projects to create autonomous land vehicles, minelayers, minesweepers, obstacle breachers, construction equipment, surveillance platforms, and anti-radar, anti-armor and
anti-everything drones. They are working on smart artillery shells, smart torpedoes, smart depth charges, smart rocks (scavenged meteors collected and then 'thrown' in space),
smart bombs, smart nuclear missiles and brilliant cruise missiles. Computer battle-managers are being developed for AirLand battle, tactical fighter wings, naval carrier groups,
and space-based ballistic-missile defense.... the Army even hopes to have a robot to “decontaminate human remains, inter remains, and refill and mark the graves." By now the
concept of postmodern war is widespread in the media and public sphere like the Internet. For instance, a 1999 ABC news program on "Postmodern War" indicated a profound
reorganization process in the military that is undergoing changes from heavy, slow, and largescale machinery, such as 70 ton tanks, to smaller, lighter, faster, and more flexible
vehicles. These are equipped with more accurate "smart" weapons and better mapping and sensor technologies which demand less "manpower" (see abcnews.com, 11/03/99).
37
Owen Bowcott, “Drone strikes threaten 50 years of international law, says UN rapporteur”, Guardian, 2012,
Exotic high-tech military devices include MEMS (Micro Electrono-Mechanical Systems) that will produce tiny airplanes or insect-like devices that can gather intelligence or attack
enemies. MARV (Miniature Autonomous Robotic Vehicle) technologies and various other automated military systems would guide robot-ships, disable land-mines and
unexploded arms, and provide more effective sensors, stabilization, navigation, control, and maintenance devices. These technologies would ultimately construct cyborg soldiers
who will incorporate such devices into their own bodies and equipment. Such miniature machines and cyberwarriors would be capable of gathering information, processing it,
and then acting upon it, thus carrying through a technological revolution based on new intelligent machines. Indeed, military strategists and capability builders claim that the
next generation of Armed forces will be "Net-ready," as in the U.S. Army development of a battlefield digitization project while it develops and fields a new family of lightweight,
easily deployable combat vehicles, which will have digital technology built into them, rather than bolting it on as the Army has had to do with older tanks and Bradley Fighting
Vehicles. Cyborg soldiers are also utilizing the Global Positioning Satellite system (which can be accessed from a computerized helmet) for precise mapping of the "enemy" and
terrain. With the complex communications systems now emerging, all aspects of war -- from soldiers on the ground and thundering tanks to pilotless planes overhead -- are
becoming networked with wireless computers providing information and exact locations of all parties. Robot scouts can roam the terrain sending back data instantaneously to
commanders. SIPE (Soldier Integrated Protection Ensemble) is an army software program designed to merge all military digital technologies into one integrated data system.
Even the physical state of the soldier can be monitored by computers, and one can imagine surgeons operating on wounds from continents away by using robots and the
technology of "telemedicine." Hence, phenomenal new military technologies are being produced in the Third Millennium, described as the instruments of an emergent
postmodern warfare, and envisaged earlier by Philip K. Dick and other SF writers. These military technologies, described in Messy Wars, are changing the nature of warfare and
are part of a turbulent technological revolution with wide-ranging effects. They are helping to engender a novel type of highly intense "hyperwar," cyberwar, or technowar,
where technical systems make military decisions and humans are put out of the loop, or are forced to make instant judgments based on technical data. As computer programs
displace military planners and computer simulations supplant charts and maps of the territory, technology supersedes humans in terms of planning, decision making and
execution. On the level of the battlefield itself, human power is replaced by machines, reducing the soldier to a cog in a servomechanism. These developments are alarming and
led French theorist Paul Virilio (1989, 84) to comment in War and Cinema: The disintegration of the warrior's personality is at a very advanced stage. Looking up, he sees the
digital display (optoelectronic or holographic) of the windscreen collimator; looking down, the radar screen, the onboard computer, the radio and the video screen, which
enables him to follow the terrain with its four or five simultaneous targets; and to monitor his selfnavigating Sidewinder missiles fitted with a camera of infra-red guidance
system . The autonomization of warfare and ongoing displacement of humans by technology
creates the specter of technology taking over and the possibility of military accidents, leading
to, Virilio warns us, the specter of global catastrophe. There is a fierce argument raging in military circles between those who
want to delegate more power and fighting to the new "brilliant" weapons opposed to those who want to keep human operators in charge of technical systems. Critics of
cyberwar worry that as technology supplants human beings, taking humans out of decision-making
loops, the possibility of accidental firing of arms at inappropriate targets and even nuclear war
increases. Since the 1980s, Virilio criticized the accelerating speed of modern technology and indicated
how it was producing developments that were spinning out of control, and that, in the case of
military technology, could lead to the end of the human race (see Virilio and Lotringer’s Pure War 1983). For Virilio, the
acceleration of events, technological development, and speed in the current era unfolds such that "the new war machine combines a double disappearance: the disappearance
of matter in nuclear disintegration and the disappearance of places in vehicular extermination" (Virilio 1986: 134
Stephen Graham, Professor of Cities and Society at the Global Urban Research Unit, makes a similar
arguments about our obsession with technology and the implications for what he calls automated killing
systems, such as drones.40
On the flip side of this controversy, there are a number of potential negative arguments against
limiting the president’s status quo ability to use drones. First, there are several potential counterplans.
The most obvious would be for the president to act on his/her own. While we later discuss how the
affirmative can make a number of arguments against this counterplan (including object fiat arguments),
this counterplan also calls into question the need for Congress/Courts to act, which is a core area of
debate. The community will have to decide the question of object fiat, but absent that argument cards
exist both ways to support a substantive debate on who needs to act to restrain the executive branch.
Here is a card that calls for the president to act:
NY Times 5/30/12 (http://www.nytimes.com/2012/05/31/opinion/too-much-power-for-a-president.html?_r=1&)
A unilateral campaign of death is untenable. To provide real assurance, President Obama
should publish clear guidelines for targeting to be carried out by nonpoliticians, making
assassination truly a last resort, and allow an outside court to review the evidence before
40
Stephen Graham Centre for the Study of Cities and Regions, Department of Geography Cities and the ‘War on
Terror’ Volume 30.2 June 2006 255–76 International Journal of Urban and Regional Research,
As the Italian philosopher Giorgio Agamben explained, the ‘state of exception’ is not
characterised by ‘a special kind of law (like the law of war)’ but rather by the ‘suspension of the
juridical order itself’, marked by ‘the extension of the military authority’s wartime powers
into the civil sphere’ in which the normal protections provided by the constitution and rule of
law are no longer provided. Though intended to be temporary in nature, Agamben argues that
the ‘state of exception’ has become a permanent fixture of democratic governance. The ‘state
of exception’ as applied in the ‘war on terror’, a ‘war’ declared by the US and its allies against
a tactic, and therefore unbound by time or space, is ongoing. One of its most prominent features is drone warfare,
initially focused on established ‘war on terror’ battlefields such as Afghanistan, Pakistan, Yemen and Somalia, and now expanding into largely
unchartered territory, as evidenced by the opening of a US drone base in Northwest Africa coinciding with the US-backed French intervention in Mali.
First established under the Bush administration, and touted by its supporters as a relatively cheap and technologically sophisticated means of targeting
suspected terrorists in remote areas, the programme has expanded seven fold under Obama. The ‘guilty until proven innocent’
premise on which the targeted-killing programme is based, demonstrates the current
president’s similar disregard for international law and humanitarian norms when it comes to
fighting terrorism. The recent passage of the US 2013 National Defense Authorization Act (NDAA)
and the choice of newly inaugurated US President Barak Obama’s chief counterterrorism
advisor, aka the ‘assassination tsar’, John Brennan to head the CIA, signal that the legal and
discursive components of the ‘war on terror’ will be further institutionalized over the next
four years. These developments are connected to an overall restructuring of US power in the
region, linked to ethical and strategic losses in the wars in Iraq and Afghanistan, an economic
crisis at home, the multipolarisation of power in the international system and increasing
attention to developments further east. In the coming years, US austerity intervention in West Asia and North Africa is more
likely to take the form of covert military operations rather than boots on the ground, and a greater reliance on regional allies. The US’ ability
to project its power in the region has proven adept at responding to fast moving
Presidential War Powers 35
developments on the ground in the past. However, ongoing challenges to the dehumanising
discourses, policies and practices associated with the latest iteration of US hegemony have
also proven dynamic, and have taken several different forms over the years.
Additionally, the executive powers to detain have significantly minimized the role of the legislature and
judiciary in counterterrorism policy – this blurs the lines of separation of powers and checks and
balances.53
The literature discusses two ways to solve the advantages through limiting executive war
powers: 1) The federal courts striking down the NDAA; and 2) Congress repealing the NDAA.54 The
Courts have the power to grant 5th and 14th amendment rights to prisoners in US territories (including
Guantanamo Bay), and the Congress has oversight powers – both can be used to limit Executive
authority to detain.
Amos N. Guiora, Professor of Law, S.J. Quinney College of Law, University of Utah, “DUE
PROCESS AND COUNTERTERRORISM”, Emory International Law Review, June 28th 2012,
The question of whether to extend constitutional protections to non-citizens was originally
addressed in the Dred Scott decision, which held that the Fifth Amendment was not limited to
the geographic boundaries of the states, but rather, such protections were extended to all incorporated territories of the
United States.67 In the 150 years since Dred Scott, the Court has discussed similar cases with two distinct “lines of demarcation”
important for determining detainee rights: first, distinguishing between individuals within and outside of the United States; and second, distinguishing
between citizens and non-citizens.68 In discussing these two issues, case law slowly extended constitutional protections
to include non-citizens, provided they could demonstrate cognizable ties to the United
States.69 The clearest tie was physical location within the borders of the United States.70 In
accordance with Johnson v. Eisentrager, 71 this specific inquiry directly influences this Article’s question, as the decision of Guantanamo Bay’s status as
a territory of the United States is of the utmost importance. If Guantanamo Bay is held as a territory of the United
States, then the precedent dictates that fundamental rights, like the Fifth and Fourteenth
Amendments, should apply. However, if it is not held to be a territory, then the constitutional protections would not necessarily be
afforded. Failing to institutionalize independent judicial review of detention decisions directly resulted in the significant number of detainees held
indefinitely. If there are no criteria for determining what actions pose a threat to American national security, the detentions are reflective of an
approach best described as “round up the usual suspects.” This is not a policy; it is a tragic reality of the past ten years. Indefinite detention perhaps
sounds attractive, for it removes from the zone of combat—indefinitely—individuals suspected of involvement in terrorism. The qualifier “perhaps” is
essential to the discussion, for the inherent unconstitutionality of indefinite detention has a pervasive effect on U.S. counterterrorism. Furthermore,
the dearth of articulated criteria for initial detention and subsequent remand alike inevitably guarantees that individuals have been wrongly detained
precisely because threat has not been defined. While Judge Bates’ decision was of the utmost importance—more than any Supreme Court holding
addressing counterterrorism in the past eight years, save Boumediene—it has not resulted either in a significant re-articulation of U.S. policy nor in the
granting of habeas corpus to thousands of detainees.72 Aside from its decision in Boumediene, the Supreme Court has failed to
articulate the rights granted to suspected terrorists. Similarly, Congress has failed to articulate
these rights through its constitutionally granted oversight powers. It is essential to balance—or maximize—the
legitimate rights of the individual with the equally legitimate national security rights of the state. Furthermore, Judge Bates’ decision seeks to move
beyond the amorphousness that has defined much of the debate over the last ten years.73
53
Amos N. Guiora, Professor of Law, S.J. Quinney College of Law, University of Utah, “DUE PROCESS AND
COUNTERTERRORISM”, Emory International Law Review, June 28th 2012,
Professor Vladeck simply cannot imagine how judicial review of military detentions, even in active theaters of war, could possibly disrupt the
government’s war efforts. If the courts order that detainees be released, then judicial review was clearly necessary to correct erroneous detentions.
And if the courts do not order that detainees be released, then what does the government have to complain about? By this standard, judicial review of
military detentions is always justified, without regard to cost or outcome. But of course, this standard does not measure the
true cost of judicial review. It must be remembered that the kind of judicial review at issue here was not
carefully constructed and balanced by our political leaders, but rather was imposed by the
courts as a matter of constitutional requirement. The war on terror and the wars in Afghanistan and Iraq are wars of
choice waged against vastly outmatched opponents, but constitutional requirements apply equally during wars of necessity in which the nation’s very
survival is at stake. We held hundreds of thousands of prisoners of war during the Civil War and
World War II—how is Professor Vladeck’s expansive judicial review supposed to be
administered under such circumstances without seriously compromising our security
interests? No practicable answer is even remotely suggested in my sparring partner’s essay. Until the new kind of war presented by the war on
terror came along, the courts uniformly recognized that war is a matter best handled by the political branches, and that at least in active theaters of
combat operations, the judiciary should stay out. That is why the D.C. Circuit’s decision in Maqaleh is so important: It recognizes there are
times and places in which the substantial costs in time, energy and resources that necessarily
accompany the judiciary’s error-correcting function simply aren’t worth it , and to which the framers
accordingly never intended to extend constitutional habeas protections. To be sure, the circumstances in which constitutional habeas protections do
not apply are carefully circumscribed; U.S. citizens, for example, will always be entitled to habeas review. And after Boumediene, most if not all aliens
detained domestically will be as well. But within that narrow sphere from which the judiciary has been
excluded—and has by and large accepted its exclusion—the time, energy and resources at stake can be a matter
of life or death for our troops, and for the nation as a whole. Professor Vladeck does not believe the stakes could
possibly be so high. And in a war of choice in which only a few hundred detainees being held an ocean away from the front lines are permitted access
to our courts, perhaps they are not. But how could the military possibly have defended hundreds of thousands of habeas petitions in the midst of
World War II? With the witnesses to captures primarily being front-line soldiers still engaged in fighting, should we pull half of Easy Company out of
Operation Market Garden to type up detention affidavits? With military intelligence attempting to secure mission-
critical information that could turn the tide of war, should we allow their operations to be
chilled and disrupted by a stream of discovery requests? And having disarmed enemy troops
on the battlefield and placed them in detention camps where they can do no further harm,
Presidential War Powers 38
should we rearm them with legal causes of action that will consume significant time and
manpower to defend, and further provide them a public platform from which to denounce the
United States? In light of these costs and disruptions, it is unsurprising that the Geneva Conventions, for example, do not even hint at any kind
of judicial review requirement for the ordinary detention of military prisoners. Will mistakes be made in war, including erroneous detentions? Certainly.
Would robust judicial review correct those errors? Some of them, probably. Courts are no more infallible than military review boards, however, and the
fact that the D.C. Circuit has overturned every award of habeas relief the government has appealed shows that courts get it wrong plenty of the time,
too—having reached opposite conclusions in those cases, the district court and the court of appeals cannot both be right. In the end, however,
Professor Vladeck simply presents no evidence that the D.C. Circuit’s habeas review procedures have failed to provide adequate error correction for the
Guantanamo detainees, or that the expected benefits of extending such review to active theaters of war would outweigh the attendant costs.
In addition to these disadvantages, there are a number of critical implications to detention
affirmatives that negative teams could explore. For example, there is an implicit assumption by the
affirmative that a detainee could, at some point, receive a “fair trial”. This is questionable in our current
security focused worldview. The article below is not peer-reviewed, but it provides a nice summary of a
potential negative criticism of “fair trials for detainees”.
Ondelette, “Can a terrorist get a fair trial?,” August 2, 2009
On both sides of the debate over detention and what to do with all the prisoners who have been denied rights, abused, tortured, rendered, or kept incommunicado, both during and after
the Bush administration’s foray into lawless incarceration, there is an implicit assumption that a terrorist can get a fair trial if
brought to a ‘regularly constituted court’, to use the phrase from the Geneva Conventions. Those in favor of continued
detention without charge worry that such a person will get too many rights, rights they believe should be restricted to those
who ‘deserve’ them. Those opposed to the current state of indefinite detention and those who have
vigilantly opposed torture and promoted human rights often point to the near flawless record
of convictions of terrorists in U.S. courts as proof that the country will be safe if real trials are
held. Glenn Greenwald, for instance, rightfully calls the ability to convict terrorists in court "breathtakingly broad": Second, as a result of breathtakingly broad criminal laws in the U.S. defining "material support for terrorism," there are few things easier
than obtaining a criminal conviction in federal court against people accused of being Terrorists. Even if the only thing someone has done is joined a group decreed to be a Terrorist organization, without even engaging in (or even planning) any violent acts, federal
prosecutors are well-armed to convict them. So can a terrorist get a fair trial? Let’s make it specific: What would sane behavior look like for Aafia Siddiqui, whose competency hearing was held on July 6th,
during which she interrupted the hearing with outbursts like, "I’m not psychotic — I can assure you I am not", "I didn’t ask to come here", and reportedly stated that the real reason she wished to be declared competent was so she could fire her counsel. Judge
Berman handed down his ruling finding her competent on July 29th, the New York Times wrote it up here, and you can read the decision, together with Ms. Siddiqui’s letter which was disseminated to bolster the contention of those in the courtroom that she was
"off" at the hearing, and to prove she was anti-Semitic, amalgamated by the Times, here. At first glance, the judge’s decision seems straight-forward. He outlines the previous filings and court appearances in the case, check. He then summarizes the testimony of five
psychiatrists who had observed her, check. He kind of takes a poll over these psychiatrists, factoring in his own courtroom judgments, check…er, or maybe a little off, how do you poll 3 prosecution psychiatrists and 2 defense psychiatrists and come to a fair
outcome? He states the applicable law and the burden of proof, and the rights of the defendant. Apparently, under the law he states, she had the right to testify for herself during the hearing, as opposed to shouting out her rebuttals and being told to be quiet. There
is no record that she did so testify or was asked if she wanted to. But it kind of goes deeper than that. In August 2008, as part of a signed deposition, her lawyer at the time, Elizabeth Fink, stated that, "Based on multiple factors and investigation, I have a good faith
basis to believe that [Dr. Siddiqui] is a victim of torture,…" and had asked that she be transferred to "the Forensic Unit at Elmhurst Hospital administered by the New York City Department of Corrections…", which Judge Berman notes in his ruling (p. 5, p.8 of the NYT
amalgamated pdf), "is not a part of the BOP".Which presumably is why they sent her to Carswell, TX, to a Federal criminal psychiatric unit, which is where she got the notion that she had but this one hearing to speak if she were declared unfit, "I’ve seen what the
drugs do and people can’t speak." You see, there is another important distinction between the facility at Elmhurst and that at Carswell. Elmhurst has forensic psychiatrists who specialize in torture victims. The five hundred pound gorilla in Aafia Siddiqui’s courtroom
is whether or not the U.S. government or agents for another power on behest of the U.S. government, held and tortured her for 5 years, and disposed with or are still holding one or two of her children. She says so. Her family says so. Her son recounts being shackled
and moved from place to place. Moazzam Begg and Binyam Mohamed believe they saw her at Bagram. And something has to account for psychological symptoms which were variously described as, depressive psychosis, paranoid schizophrenia, PTSD, and
tangentiality, none of which are commonly contracted without a major incident when someone is in their thirties. Even if that "mental disease" as it was put when she went to Carswell, is not sufficient grounds for her to be mentally unfit to stand trial. The
prosecution psychiatrists found her to be malingering: a psychological term for exhibiting behavior purposely to achieve an end, which they assumed was to be declared unfit and avoid prosecution "for her crimes". All the psychiatrists, perhaps at Judge Berman’s
request, discussed in their testimony how to distinguish where jihadi extremism leaves off and insanity begins. The trial has not yet begun, there have been no witnesses supposedly called (except to determine her mental state) and yet there is a determination of
"jihadi extremism" assumed by all? The verdict first, trial after! Although she is not charged with any act of terrorism (what she is charged with is very similar to charging her with being an unlawful combatant in many ways, cf. Major Frakt on Mohamed Jawad), the
prosecution has entered court papers tying the case to that of Uzair Paracha, who was convicted in the same court of participating in a plot to blow up gas stations. The only witness accusing the mastermind of the plot, Majid Khan, recanted. Mr. Khan is unfit for trial
(three suicide attempts after being held at a black site and then Guantanamo Bay). The plot was divulged by someone named Khalid Sheikh Mohammad in custody, he of the 183 waterboarding sessions. Again, torture comes into U.S. courts. Is it legal to assert
intelligence against a plotter taken in torture?Uzair Paracha’s other accomplice, other than, that is, Majid Khan, was supposed to be Aafia Siddiqui, the "al Qaeda Matahari". Who also is supposed to have negotiated $30 million dollar blood diamond deals in Sierra
Leone and taken the money back to al Qaeda in Afghanistan while putting her thesis material together for a journal article and taking care of her own and her neighbors kids in Roxbury, Mass. And a lot of other things. Put simply, in the courtroom during her
competency hearing, the prosecution wanted her put away for life in ADO Florence,CO, the defense wanted her put away for life in Carswell, TX, the Judge is finding her anti-Semitic, and the court reporters want her convicted a half a mile from ground zero. No
possibility of an Istanbul Protocol examination, no investigation into her disappearance, no hunt for her children (the court in Pakistan which had ordered one was itself ordered out of existence yesterday, because it had been constituted during the Musharraf
emergency, it’s up to the Senate there to re-instate any court orders over the next 120 days). So about those outbursts which the judge treated as insanity while they were happening, and as malingering afterward: Exactly what would sane behavior in such
circumstances have been? There is always more. No consular access in Afghanistan, no judicial hearing for extradition, interrogation while she was hospitalized at Craig Joint Theater Hospital in Bagram with wounds the U.S. military considered non-life threatening
but required removal of part of her intestines and possibly one kidney and caused her to lose consciousness (note the FBI notes at page 41 of the NYT amalgamation). That’s an interesting phenomenon, that interrogation. Rumors are that she was on a restraint bed
with 24/7 lights during that two weeks at Craig. She supposedly opened up to the same people who had just shot her a few days before? And why wasn’t she read her Miranda Rights then until she arrived in court in Manhattan, on August 5, 2008 before Judge Ellis
(S.D.N.Y., p.4 of the NYT amalgamation), the judge who remarked at the time that her extradition from Afghanistan had been speedier than he could get a prison from across town in Brooklyn. At the end of the day,
unless and until the conditions of her previous treatment are brought into the court, until
information explicitly derived from torture by waterboarding is banned from the courtroom,
until a defendant can testify at her own competency hearing, until she is given proper tests for
a credible allegation of torture, until subpoenas can be assured for the Ghazni police and the
governor of Ghazni, who say she never fired on anyone and the U.S. officers panicked and
shot, until the U.S. Attorney who wrote extraordinary rendition memoes for the State
Department that rival those of John Yoo and Jack Goldsmith (see this, for example) is forbidden to introduce
damning evidence to the judge before the trial starts, Aafia Siddiqui goes on trial not as a
defendant who is innocent until proven guilty, but as a terrorist, who is getting far more
justice than she deserves, isn’t she? Besides, she believes in Zionist plots. The days of the ACLU going to bat for George
Presidential War Powers 39
Lincoln Rockwell are long forgotten. And Ms. Siddiqui probably wouldn’t accept them anyway, she also believes in Indian plots, American plots, just about any kind of plot imaginable. Just like someone
who’s been kept in extreme isolation too long, hunh? There was another woman who in fact became a fugitive from justice and
the subject of a nationwide manhunt because she didn’t feel she could ever get a fair trial in
America. Does anybody remember Angela Davis?
We can also envision a rather persuasive “whitewashing” argument. Changing our detention policy
certainly wouldn’t end some of the more egregious practices of the war on terror, and could potentially
result in more drone strikes if “taking prisoners” is not an option. Such an argument is talked at greater
length in the general section of the topic paper.
4. Warrantless Wiretapping
As a presidential war power that operates at the intersection of debates about foreign policy,
the war on terror, and civil liberties, warrantless wiretapping promises to be a unique and exciting case
area. Although it might not appear that wiretapping would be a “war power,” the Bush administration
used commander in chief powers to justify the need for National Security Agency use of illegal wiretaps.
Louis Fisher 2008, Specialist in Constitutional Law, Law Library, Library of
Congress, “Domestic Commander in Chief: Early Check by Other Branches,” CARDOZO LAW
In a case challenging the latest version of NSA’s vaccum-cleaner wiretapping, Amnesty v.
Clapper, the Obama administration is arguing that only those who can demonstrate that they
have actually been wiretapped (under a top secret program) are eligible to sue the
government—and that therefore the courts should toss out a suit brought by lawyers,
journalists, and activists who regularly communicate with clients and sources in the Middle
East, reasonably believe (based on public information) that their communications are highly
likely to be swept up in the NSA’s broad collection programs, and have taken costly measures
to reduce the risk of this occurring. The trouble here is that almost none of the thousands or
millions of people intercepted—many (if not most) of whom are entirely innocent—will ever
be informed about the surveillance of their calls and e-mails. As the legislative history of FISA makes clear, Congress expected that most
electronic surveillance for intelligence purposes was not necessarily being conducted with a view to criminal prosecution. Moreover, federal prosecutors actually decline to pursue about 80 percent of the
terrorism-related cases referred to them by the FBI. Perversely, then, the most evidently guilty stand some chance of learning they have been spied on—but the innocent almost never will, and thus never have an
opportunity to have a court determine whether their rights have been violated. Because the plaintiffs in Amnesty are seeking a ruling on the legality of current and future surveillance, rather than monetary
damages for past conduct, this latest ruling doesn’t necessarily sink their suit, which the Supreme Court is slated to hear in October to determine whether the challenge can proceed. There too, however, the
Obama administration’s position is that it should not.¶
And, as Sachez concludes, there is little hope that the Court will intervene to limit the Obama
administration’s use of wiretapping.
Julian Sanchez ’12, Cato Institute, 8/10, Illegally Wiretapped? Sorry, the Courts Won’t Help
As the battle over reforms to the Foreign Intelligence Surveillance Act rages in Congress, civil libertarians warn that legislation sought by the
White House could enable spying on "ordinary Americans." Others, like Sen. Orrin Hatch (R-Utah), counter that only those with an "irrational
fear of government" believe that "our country's intelligence analysts are more concerned with random innocent Americans than foreign terrorists overseas."¶ But focusing on the
privacy of the average Joe in this way obscures the deeper threat that warrantless wiretaps
poses to a democratic society. Without meaningful oversight, presidents and intelligence
agencies can -- and repeatedly have -- abused their surveillance authority to spy on political
57
Dell Cameron, Motherboard, 4-5-13, 'Going Dark': What's So Wrong with the Government's Plan to Tap Our
enemies and dissenters.¶ The original FISA law was passed in 1978 after a thorough congressional investigation headed by Sen. Frank Church (D-Idaho) revealed that for
decades, intelligence analysts -- and the presidents they served -- had spied on the letters and
phone conversations of union chiefs, civil rights leaders, journalists, antiwar activists,
lobbyists, members of Congress, Supreme Court justices -- even Eleanor Roosevelt and the
Rev. Martin Luther King Jr. The Church Committee reports painstakingly documented how the
information obtained was often "collected and disseminated in order to serve the purely
political interests of an intelligence agency or the administration, and to influence social policy
and political action."¶ Political abuse of electronic surveillance goes back at least as far as the Teapot Dome scandal that roiled the Warren G. Harding administration in the early 1920s.
When Atty. Gen. Harry Daugherty stood accused of shielding corrupt Cabinet officials, his friend FBI Director William Burns went after Sen. Burton Wheeler, the fiery Montana progressive who helped spearhead
the investigation of the scandal. FBI agents tapped Wheeler's phone, read his mail and broke into his office. Wheeler was indicted on trumped-up charges by a Montana grand jury, and though he was ultimately
cleared, the FBI became more adept in later years at exploiting private information to blackmail or ruin troublesome public figures. (As New York Gov. Eliot Spitzer can attest, a single wiretap is all it takes to
torpedo a political career.)¶ In 1945, Harry Truman had the FBI wiretap Thomas Corcoran, a member of Franklin D. Roosevelt's "brain trust" whom Truman despised and whose influence he resented. Following
the death of Chief Justice Harlan Stone the next year, the taps picked up Corcoran's conversations about succession with Justice William O. Douglas. Six weeks later, having reviewed the FBI's transcripts, Truman
passed over Douglas and the other sitting justices to select Secretary of the Treasury (and poker buddy) Fred Vinson for the court's top spot.¶ "Foreign intelligence" was often used as a pretext for gathering
political intelligence. John F. Kennedy's attorney general, brother Bobby, authorized wiretaps on lobbyists, Agriculture Department officials and even a congressman's secretary in hopes of discovering whether the
Dominican Republic was paying bribes to influence U.S. sugar policy. The nine-week investigation didn't turn up evidence of money changing hands, but it did turn up plenty of useful information about the
wrangling over the sugar quota in Congress -- information that an FBI memo concluded "contributed heavily to the administration's success" in passing its own preferred legislation.¶ In the FISA debate, Bush
administration officials oppose any explicit rules against "reverse targeting" Americans in conversations with noncitizens, though they say they'd never do it.¶ But Lyndon Johnson found the tactic useful when he
wanted to know what promises then-candidate Richard Nixon might be making to our allies in South Vietnam through confidant Anna Chenault. FBI officials worried that directly tapping Chenault would put the
bureau "in a most untenable and embarrassing position," so they recorded her conversations with her Vietnamese contacts.¶ Johnson famously heard recordings of King's conversations and personal liaisons with
various women. Less well known is that he received wiretap reports on King's strategy conferences with other civil rights leaders, hoping to use the information to block their efforts to seat several Mississippi
delegates at the 1964 Democratic National Convention. Johnson even complained that it was taking him "hours each night" to read the reports.¶ Few presidents were quite as brazen as Nixon, whom the Church
Committee found had "authorized a program of wiretaps which produced for the White House purely political or personal information unrelated to national security." They didn't need to be, perhaps. Through
programs such as the National Security Agency's Operation Shamrock (1947 to 1975), which swept up international telegrams en masse, the government already had a vast store of data, and presidents could
easily run "name checks" on opponents using these existing databases.¶ It's probably true that ordinary citizens uninvolved in political activism have little reason to fear being spied on, just as most Americans
seldom need to invoke their 1st Amendment right to freedom of speech. But we understand that the 1st Amendment serves a dual role: It protects
the private right to speak your mind, but it serves an even more important structural function,
ensuring open debate about matters of public importance. You might not care about that first
function if you don't plan to say anything controversial. But anyone who lives in a democracy,
who is subject to its laws and affected by its policies, ought to care about the second.¶ Harvard University
legal scholar William Stuntz has argued that the framers of the Constitution viewed the 4th Amendment as a
mechanism for protecting political dissent. In England, agents of the crown had ransacked the homes of pamphleteers critical of the king -- something the
founders resolved that the American system would not countenance.¶ In that light, the security-versus-privacy framing of the
contemporary FISA debate seems oddly incomplete. Your personal phone calls and e-mails
may be of limited interest to the spymasters of Langley and Ft. Meade. But if you think an
executive branch unchecked by courts won't turn its "national security" surveillance powers
to political ends -- well, it would be a first.
Undoubtedly the biggest disadvantage to wiretapping affirmatives will be the argument that giving the
Commander and Chief broad latitude to conduct domestic surveillance operations is necessary to
combat terrorism. Teams that read wiretapping affirmatives can get offense in that debate contending
that broad wiretapping programs hurt our counter-terror efforts.
Agrast ’06 Mark Agrast is a Senior Fellow at the Center for American Progress. Ken Gude is the Associate Director of the
International Rights and Responsibility Program at the Center for American Progress. February 2, 2006, Center for American
Progress, NSA Domestic Warrantless Wiretapping and the “Trust Me” President, http://www.americanprogress.org/issues/civil-
The constitutional rights of an unknown number of innocent Americans have been violated.
And the program has compromised our national security in three primary ways.¶ First , it has
jeopardized the prosecution of alleged terrorists. If evidence obtained under the warrantless
surveillance program was or will be used in any criminal prosecutions (as the administration has
asserted), then those convicted or accused terrorists can and surely will raise a constitutional
challenge, potentially irreparably jeopardizing these criminal cases.¶ Second , the NSA program
could harm ongoing investigations. The FISA Court, which approves or denies applications for FISA warrants,
Presidential War Powers 42
could shut down any counterterrorism wiretaps that it authorized on the basis of unlawfully
collected information. This is not a hypothetical situation. In 2001, the FISA Court shut down
numerous wiretaps after learning that the FBI had supplied faulty information in the FISA warrant
applications.¶ Third , the program has misdirected resources that would be better spent pursuing
terrorists. NSA eavesdropping – “turning on the spigot” in the words of former NSA Director Michael Hayden –
yielded a tremendous volume of information that led nowhere .
Wiretapping is also a fruitful area for critical affirmatives about the modern surveillance state. There are
many philosophical objections to Bush and Obama’s wiretapping efforts:
Williams ’09 Daniel R. Williams ** Associate Professor, Northeastern University School of Law, Boston, MA, 2008 - 2009¶
Michigan State Journal of International Law¶ 17 Mich. St. J. Int'l L. 493, AVERTING A LEGITIMATION CRISIS AND THE PARADOX OF
THE WAR ON TERROR, Lexis
II. DOMESTIC WARRANTLESS SURVEILLANCE AND MONARCHICAL SOVEREIGNTY IN AN AGE OF TERROR¶ Within days of
9/11, the N ational S ecurity A gency n18 launched a surveillance program n19 that would, upon
public disclosure, expose a paradox: the United States, perhaps the most open society ever
witnessed in history, already had the apparatus and the wherewithal to be perhaps the most
sophisticated surveillance state ever witnessed in [*499] history. We do not know how to comprehend this
paradox n20 --and so, I suspect, we pretend it does not exist. Bobbitt seems to understand the dilemma arising from this paradox
when he says that the "most difficult intelligence challenge of all" is finding a way "to develop rules that will effectively empower the
secret state that protects us without compromising our commitment to the rule of law." n21 We can all join Bobbitt in decrying our
nation's lassitude in trying to resolve this paradox by simply turning away from it. n22¶ Domestic spying, without
warrants, and thus bypassing judicial oversight, was carried out without public awareness and
congressional approval, performed in the name of national security; before 9/11, such surveillance
perhaps seemed to some to be a rather fanciful, archaic, a sort of it-can't-happen-here activity that needn't worry us too-busy
Americans. When the New York Times broke the story that the Bush Administration did exactly that, when we learned that it
actually did happen, that it was happening, that arguments were being marshaled and rhetorical code words and scare tactics were
being pumped through all our media outlets to justify it, many regarded the revelation as uncovering something new, not just
another feature of this state of exception we call post-9/11 America, a.k.a. the War on Terror. n23¶ That is the sense one gets from
reading Eric Lichtblau's account of his experiences as a New York Times reporter covering the Bush Administration's construction
and prosecution of the War on Terror, in [*500] his book, Bush's Law. n24 There is no considering the possibility that, in fact, what
we were witnessing, are witnessing, is not something new at all, but rather something old--
the resurgence of something so old and out of mind that we thought it was dead and gone:
monarchical rule, which in its classical form is the expression of a nation's sovereignty through
the power of a King. That possibility is not only considered in another account of the Bush Administration's handling of the War on Terror--the excellent book,
Unchecked and Unbalanced: Presidential Power in a Time of Terror, by Frederick A.O. Schwarz Jr. and Aziz Huq--it is the principal accusation leveled at the architects of this War.
n25¶ Because this country was built upon the earlier defeat of the monarchical ideal, a defeat that occurred in the wake of the English Civil War and the Glorious Revolution of
1688; n26 because the Founding Generation was radical enough to replace that defeated ideal with a modernist constitutional framework dedicated to a system of power-
sharing; n27 because the historical record is replete with convincing evidence that the Founding Generation feared and repudiated the notion of an executive power that gave
discretionary authority to disregard legislative enactments n28 --because of all this, Schwarz and Huq argue, the resurgence of monarchical-style sovereignty, dressed up in the
academically neutered name, the unitary executive theory, is more than just worrisome--it threatens democracy itself. n29 Though they are somewhat tentative and sparing in
their analysis of exactly why democracy is threatened, it seems clear to this author that the threat is ominous precisely because this resurgence is occurring at a time when our
public sphere has been degraded through a spiritually deadening and ecologically unsustainable consumerism. The media has the unprecedented power and sophistication to
manipulate wants, tastes, and opinions, and the onset of more devastating terrorist attacks within the United States is virtually assured. n30¶ [*501] We may miss out on the
most fundamentally troubling aspects of what is taking place at this precarious moment in our nation's history if we see the NSA spy scandal as merely or primarily a question of
legality: Did the President and others in his administration, or the lawyers who enabled the War on Terror, break the law? The NSA spy scandal exemplifies the Bush
Administration's view that the commitment to divided and shared powers--a vital hallmark of our constitutional system, if not the key ingredient of it--must bend to
accommodate a new form of sovereignty, a new vision of state power, one where this Nation must act decisively through executive action unburdened by other branches of the
government.¶ This state of emergency requires, on this view, not the actions of a government, but the actions of a Nation, and the Nation must express itself not through
governmental activity, but through the bold and decisive decision making of its Head of State. So, when the government detains people without formal due process (often
indiscriminately and recklessly), the President is exercising sovereign authority in a way that trumps an existing regime of rights whereby the government must justify the
detention through an established juridical process. What is crucial to see in the many cases of indiscriminate detention is that this exercise of sovereign authority is not one in
defiance of law, but rather is a form of sovereignty that expresses itself through the manufacturing of law, the creation of an entirely new legal regime that has at its core the
anachronistic ideal of monarchy. n31¶ A clear rhetorical signal of this resurgence of the monarchical ideal is the prevalence of the word deeming. We are
becoming a nation where the State may deem you a dangerous person through a suitable
label like terrorist, and an entirely new regime of legality gets triggered, a regime heretofore
Presidential War Powers 43
unimagined in this country. n32 Deeming is not proving. Deeming is a form of identifying under the mantle of assumed
authority. In times of old you could be deemed worthy of detention; in this country, we have long believed, you must be proven to
deserve detention. Monarchs deem; Presidents don't.¶ [*502] The NSA spy scandal is another, perhaps starker,
revelation of ambition to convert the Presidency into a modern-day monarchy where a new
regime of law governing domestic surveillance must come into existence in this time of
emergency, not through normal political channels, but through the sheer force of the
President's authority as Head of State. Some suggest that it is in that sense that the Bush
Administration's policies threaten to render this country unrecognizable.
And, warrantless wire-tapping leaves us in a permanent state of racial exception.
Michaelsen & Shershow ’05 Scott Michaelsen is an associate professor of English at Michigan State University.
Scott Cutler Shershow is Professor of English and director of the graduate program in Critical Theory at the University of California,
John G. Malcolm, 9-18-12, Heritage Foundation, Foreign Intelligence Surveillance Amendments Act of 2008 Set
to Expire, http://www.heritage.org/research/reports/2012/09/foreign-intelligence-surveillance-amendments-act-
of-2008-set-to-expire
Presidential War Powers 46
Homegrown terror, so lightly dismissed by so many for so long, is sprouting perilously from American soil. Najibullah Zazi, indicted this week on charges of plotting an Al Qaeda bomb strike, is the terrifying face of a strain of radical, violent
Islam within the U.S.¶ His case history documents how terrorists can fade into the fabric of the country's pluralistic population and
how easily they can fashion explosives out of readily available products.¶ But Zazi is not alone:¶ Brooklyn-born Betim Kaziu was
charged Thursday with attempting to join a Pakistani-based Al Qaeda affiliate in hopes of killing U.S. troops.¶ Jordanian Hosam
Maher Husein Smadi was arrested Thursday in Dallas for putting what he believed was a car bomb in an office-tower garage.¶
Michael Finton, a 29-year-old Illinois man who idolized American Taliban John Walker Lindh, was arrested Wednesday on charges of
plotting to bomb a federal courthouse.¶ Long Islander Bryant Neal Vinas was busted in July for allegedly training with Al Qaeda in
Pakistan, joining rocket attacks on U.S. forces and giving "expert advice" on the subways and Long Island Rail Road.¶ Three U.S.
citizens and a Haitian immigrant were charged in May with conspiring to plant 37 pounds of explosive at two Bronx synagogues.¶
Three illegal-immigrant brothers from Macedonia were sentenced in April to life for plotting in 2007 to kill soldiers at Fort Dix, N.J.¶
Zazi, who was born in Afghanistan, ran a Manhattan doughnut cart. That's how law-abiding, hardworking and, yes,
normal, he seemed even as, probers believe, his heart beat as an engine of mass destruction.¶ How plausible his denials seemed
before his arrest. The fire in his brain is matched by the ice in his veins. And, evidence indicates, he was well on the way to
assembling devices, concealable in backpacks, that could have blown speeding trains off their
rails.¶ New York and America are lucky the NYPD and FBI grabbed Zazi before he wreaked
havoc. But his associates are out there, with more to come.¶ That's why the see-something-
say-something rule must be reinforced. Why authorities must educate sellers of beauty and hair products that can be
perverted to evil. Zazi bought loads of such stuff in Colorado.¶ Why New Yorkers must accept the mild intrusion of even more bag
inspections in the subways. And why Congress must not weaken Patriot Act provisions that enable
authorities, with warrants, to wiretap and seize records of terror suspects.
Warrantless wiretaps are also necessary to check domestic organized crime, drug trafficking, and white
Neither consulting nor notifying Congress is a substitute for its collective judgment expressed
in authorizing legislation. In any case, all members of the War Powers Initiative agree that it is
in the President’s institutional interests and in the national interest for the use of force abroad
to be supported by the collective judgment of Congress and the President, because such a
judgment reflects a political consensus that makes them jointly responsible for the resulting
costs. To persuade a majority of both houses of Congress to make the collective judgment that
the use of force is in the national interest, a President must, in effect, persuade the people. If
he cannot persuade the people’s representatives, he is unlikely to persuade the people who
elected them.
This advantage would be at the core of many affirmative cases on the topic. The advantage
argues that a more restrained military policy is desirable and requiring congressional authorization is an
effective means to do that. This creates a consistent link for a number of different takes on the standard
hegemony advantage. Rather than arguing that a particular policy or technology is key to maintaining
hegemony, in this case there is a debate to be had over what hegemony looks like. Rather than
continuing the same hackneyed debates over military dominance and power projection more nuanced
advantages based on limited visions of U.S. leadership become much easier ground for the affirmative to
defend. This advantage would focus debates on how subjecting covert operations and intelligence
gathering can help create a more limited vision of U.S. leadership.
By contrast the negative has strong arguments for a more conservative vision of U.S. leadership.
Rather than the more militarily restrained vision created under the affirmative the negative would be
able to argue for a more aggressive use of covert operations to maintain U.S. military or geopolitical
Presidential War Powers 52
dominance. This could be done again, either through the use of anti-topical counterplans or
disadvantages that contend that the status quo Executive leadership makes executing covert operations
easier.
Specific to the CIA there is significant advantage ground to be argued based on the need to
strengthen congressional oversight. Perhaps most broad and intuitive is the claim advanced by
Genevieve Lester that almost every foreign policy failure including 9/11 is the result of an intelligence
failure (2011). This creates the possibility for both broad advantages based on the need for stronger
oversight generally to improve the quality of intelligence. It also allows for the ability to make more
specific claims over the need to improve intelligence in particular regions. The foundational role that
the CIA plays in geopolitics makes for very diverse affirmative advantage ground that can be accessed
with changes in oversight and leadership.
Overall, we would strongly advocate that this area be included in a topic dealing with
Presidential powers. There are legitimate mechanisms with a strong academic literature base. This is
also an incredibly timely and pressing issue. As the United States continues to pursue the War on Terror
and use unconventional means to gather intelligence and pursue military objectives the need to
question Executive authority will only grow larger.
We foresee one realistic argument against the inclusion of this topic. The changes that would
be made would by definition be substantial and would require a complete change in the way the
constitution is interpreted. The result is that some parts of the literature base could be considered
extremist or unrealistic. We offer two responses. The first is that the War Powers Resolution
demonstrates that such changes are not unrealistic, but rather occur in response to perceived problems.
The second is that this is what makes for good negative ground. If the affirmative is allowed to defend
very minute changes the ability for the negative to generate substantive links is very small. The larger
change required by the affirmative to address these harms are both realistic and a good basis for
debate.
6. Approval for UN/NATO Action
Obligations created by international and security treaties implicate the larger debate about
unchecked presidential war powers. In particular, presidents frequently contend that U.S. participation
in NATO or UN-authorized military operations are automatic treaty requirements that do not require
prior congressional approval or declaration of war. The 2011 military intervention in Libya sparked a
large debate in the literature about both the role of the UN and NATO and executive war powers.
Presidential War Powers 53
Jeremiah Gertler et al, “No-Fly Zones: Strategic, Operational, and
Legal Considerations for Congress ,” CRS Report for Congress, April 4, 2011,
http://www.fas.org/sgp/crs/natsec/R41701.pdf
On November 7, 1973, Congress passed the War Powers Resolution, P.L. 93-148, over the veto of President Nixon. The
War Powers Resolution (WPR) states that the President’s powers as Commander in Chief to introduce U.S. forces into hostilities or
imminent hostilities can only be exercised pursuant to (1) a declaration of war; (2) specific statutory authorization; or (3) a national
emergency created by an attack on the United States or its forces. It requires the President in every possible
instance to consult with Congress before introducing American Armed Forces into hostilities or
imminent hostilities unless there has been a declaration of war or other specific congressional
authorization. It also requires the President to report to Congress any introduction of forces into hostilities or imminent
hostilities, Section 4(a)(1); into foreign territory while equipped for combat, Section 4(a)(2); or in numbers which substantially
enlarge U.S. forces equipped for combat already in a foreign nation, Section 4(a)(3). Once a report is submitted “or required to be
submitted” under Section 4(a)(1), Congress must authorize the use of force within 60 to 90 days or the forces must be withdrawn.
Since the War Powers Resolution’s enactment in 1973, every President has taken the position that this statute is an unconstitutional
infringement by Congress on the President’s authority as Commander in Chief. The courts have not directly addressed this question,
even though lawsuits have been filed relating to the War Powers Resolution and its constitutionality. Some recent
operations—in particular U.S. participation in North Atlantic Treaty Organization (NATO) military
operations in Kosovo, and in U.N.-authorized operations in Bosnia and Herzegovina, in the
1990s—have raised questions concerning whether NATO operations and/or U.N.-authorized
operations are exempt from the requirements of the War Powers Resolution. Regarding NATO
operations, Article 11 of the North Atlantic Treaty states that its provisions are to be carried out by the parties “in accordance with
their respective constitutional processes,” implying that NATO Treaty commitments do not override U.S. constitutional provisions
regarding the role of Congress in determining the extent of U.S. participation in NATO missions. Section 8(a) of the War Powers
Resolution states specifically that authority to introduce U.S. forces into hostilities is not to be inferred from any treaty, ratified
before or after 1973, unless implementing legislation specifically authorizes such introduction and says it is intended to constitute an
authorization within the meaning of the War Powers Resolution. Regarding U.N.-authorized operations, for “Chapter VII” operations,
undertaken in accordance with Articles 42 and 43 of the U.N. Charter, Section 6 of the U.N. Participation Act, P.L. 79-264, as
amended, authorizes the President to negotiate special agreements with the U.N. Security Council, subject to the approval of
Congress, providing for the numbers and types of armed forces and facilities to be made available to the Security Council. Once the
agreements have been concluded, the law states, further congressional authorization is not necessary. To date, no such agreements
have been concluded. Given these provisions of U.S. law, and the history of disagreements between
the President and the Congress over presidential authority to introduce U.S. military
personnel into hostilities in the absence of prior congressional authorization for such actions,
it seems likely that a presidential effort to establish a “no-fly zone” on his own authority
would be controversial. Controversy would be all the more likely if the President were to
undertake action “pre-emptively” or in the absence of a direct military threat to the United
States.
This part of the controversy provides bidirectional advantage ground for affirmatives. On one hand,
affirmatives could contend that the precedent set by the NATO Libya operation is dangerous because it
justifies reckless foreign policy that will fuel adventurist and diversionary wars and will undermine global
non-proliferation efforts. For instance,
David Gibbs, Associate Professor of History and Political Science at the University
of Arizona, “Libya and the New Warmongering,” Foreign Policy in Focus, January 12, 2012, http://www.globalpolicy.org/security-council/index-of-countries-on-the-security-council-
Congressman Dennis Kucinich (D-OH) is today urging Members of Congress to support legislation,
H.R. 6290, to prevent future presidents from using the North Atlantic Treaty Organization (NATO) to
circumvent Congress’ constitutional authority to declare war. “NATO has become a sock
puppet to conduct military operations abroad absent congressional authorization, as required
by Article 1, Section 8 of the Constitution. This practice undermines our Constitution and global security as it
allows the president to perpetrate violence without congressional oversight. Congress must
fight to regain its basic constitutional right to declare war,” said Kucinich. H.R. 6290 would prohibit
the deployment of a unit or individual of the U.S. Armed Forces or an element of the
intelligence community in support of a NATO mission absent prior statutory authorization for
such deployment from Congress, as enshrined in Article 1, Section 8 of the Constitution.
Or, affirmatives can argue that the WPR or the United Nations Participation Act should be amended to
apply the WPR constraints on U.S. participation in U.N. operations.
Richard Grimmett, Specialist in Intl Security, 2012, “The War Powers Resolution: After
Thirty-Eight Years,” Congressional Research Service, Sept
24, www.fas.org/sgp/crs/natsec/R42699.pdf.
With the increase in United Nations actions since the end of the Cold War, the question has been¶ raised whether
the War Powers Resolution should be amended to facilitate or restrain the¶ President from
supplying forces for U.N. actions without congressional approval. Alternatively,¶ the United
Nations Participation Act might be amended, or new legislation enacted, to specify¶ how the
War Powers Resolution is to be applied, and whether the approval of Congress would be¶
required only for an initial framework agreement on providing forces to the United Nations,
or¶ whether Congress would be required to approve an agreement to supply forces in
specified¶ situations, particularly for U.N. peacekeeping operations.
We also envision affirmatives arguing that future specific NATO and U.N. military operations are bad and
that limiting U.S. support for those operations would stop the missions from occurring. There are also a
number of critical interrogations into global governance (for instance, Hardt and Negri’s work on Empire
could be used for these kinds of arguments) and the whitewashing of U.S. imperialism and the National
Security State through alliance and international systems.
The negative has a number of excellent arguments its disposal to refute these kinds of
affirmatives. In terms of counterplans, the negative can argue that rather than constrain U.S. executive
Presidential War Powers 57
authority, full withdrawal from these organizations would best solve the case harms.65 Additionally,
against teams that argue that specific interventions will be dangerous, the negative can argue that
Congress should cut DOD funding for particular NATO or U.N. operations. For example, in 2011, House
Resolution 2278 was offered to limit use of funds for the NATO operation in Libya.66
In terms of disadvantages and critiques, negatives can contend that the U.N. is necessary for
global humanitarian missions and these are good (see the discussion under “Section V: Core Negative
Arguments” for more discussion about this disadvantage). In addition, the negative can argue that
Congressional oversight would slow down U.S. response to threats to key European allies or set
precedent for other security alliances which would allow aggression against those allies and spark global
nuclear conflict. Obviously, significant ground exists for the negative to debate various aspects of U.S.
global leadership in relation to alliances and global institutions. The negative also has a number of
critical options depending on which direction the affirmative takes with their advantages. Contingent on
the direction of the aff, critiques of Empire or U.S. hegemony can be run.
7. Unilateral Preventive Military Operations
Many journalists and political pundits denounced President George W. Bush’s National Security
Strategy (NSS) of 2002—the Bush Doctrine – as dangerous because it articulated a policy of preemption.
However, as David Mitchell and Gordon Mitchell note, the Administration actually enunciated a policy of
preventive intervention.67 The difference between preemption and prevention, as articulated by David
Mitchell, is significant:
The difference between the two concepts, as presented by Jonathan Renshon in Why Leaders
Choose War: The Psychology of Prevention, is that preemption is a type of action taken in the
face of an imminent threat, whereas preventive action is designed to "forestall a grave national
threat ...that lies in the future.”68
65
See for instance Doug Bandow, “NATO: An Alliance Past Its Prime,” CATO Institute, April 26, 2012,
http://www.cato.org/blog/nato-alliance-past-its-prime and Robert Tracinski, “America Should Withdraw From The
United Nations and Let It Collapse,” Capital Magazine, March 21, 2003,
http://capitalismmagazine.com/2003/03/america-should-withdraw-from-the-united-nations-and-let-it-collapse/ 66 For a text of the bill, see http://www.gop.gov/bill/112/1/hr2278
67 David Mitchell, “Review: Why Leaders Choose War: The Psychology of Prevention by Jonathan Renshon, Praeger
Sadly, the idea that the War Powers Resolution might endanger American lives in the struggle
against terrorism is more than just a hypothetical. Indeed, more Americans were murdered by
terrorists as a direct result of the War Powers Resolution than were killed in all of our military
operations since the end of the Vietnam War. The War Powers Resolution was a primary
factor in the decision by Middle Eastern terrorists to blow up the Battalion Landing Team
Headquarters at the Beirut International Airport on October 23, 1984, killing 241 sleeping marines, sailors,
and soldiers. When President Reagan sent the Marines to Lebanon as part of an international peacekeeping force
alongside British, French, and Italian forces, the decision was not even arguably an infringement upon the power of Congress "to declare War." We
were not going to "War," we were sending a contingent of U.S. forces at the request of all of the warring factions in Lebanon to stand between them so
they could meet in confidence and try to negotiate a peaceful end to their conflict. Every country in the region originally endorsed the deployment, and
no one in Congress spoke against it on the merits. But several noted there were risks involved-risks the President openly acknowledged-and soon the
demands started coming in for a report under Section 4(a)(1) of the War Powers Resolution, the
provision governing the sending of U.S. Armed Forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by
the circumstances." To begin with, to send such a report to Congress might well have undermined the
mission in Beirut. There were numerous, highly paranoid factions engaged in the Lebanese quarrels who had consented to the American
presence on the theory that it was going to be a peacekeeping mission. Had the President notified Congress that he was
taking the nation to "War," militia leaders who had been assured the Americans were coming
in peace might well have concluded that they were going to be the object of the American
hostilities. Why else would President Reagan or his representatives have lied to them about the nature of the mission? As it turned out, the
congressional critics were wrong about "imminent involvement in hostilities," as nearly a year
passed before any of the marines came under hostile fire. During that year, the situation in
Beirut became more dangerous because the debate in Congress took a highly partisan turn.
Democrats like Senator Alan Cranston of California and former Majority Leader Robert Byrd announced that
they would not authorize the President to continue the deployment unless he first told
Presidential War Powers 72
Congress, as Cranston put it, "exactly how and when we propose to extricate them." [59] One of the points on which there was no apparent
discord at the Federal Convention in Philadelphia was that Congress had no role in the actual conduct of military operations. They were given only a
"veto" over certain kinds of commitments, leaving to the President such decisions as where to deploy troops, when to attack or redeploy troops, and
when to bring them home. As Locke explained, such decisions are heavily dependent upon the behavior of external actors, and it would have been
foolish for the President to declare in advance that U.S. forces would be withdrawn on a given date irrespective of those realities. Imagine the reaction
of Franklin D. Roosevelt had Congress demanded a withdrawal deadline before it would consider authorizing the President to defend the United States
following Pearl Harbor? Once they knew the artificial date on which the United States would withdraw, opponents of a peace settlement in Beirut
would be able to orchestrate their strategy for maximum advantage. For much of the press and many Americans, the issue no longer became whether
the United States should assist the parties in an important Middle Eastern country to resolve differences and achieve peace, but whether the President
was "above the law." Legislation to authorize the President to continue the deployment led to more partisan debate, and the Washington Post noted
that the active involvement of Senate Democratic Campaign Chairman Lloyd Bentsen in the debate suggested that "the Democrats are doing push-ups"
for the 1984 elections [60]. Marine Corps Commandant P.X. Kelley became so concerned about the partisan debate that he testified before the Senate
Foreign Relations Committee that the partisan debate could "encourage hostile forces or forces inimical to the best interest, the life and limb of the
Marines." General Kelley warned that "hostile forces would use this as an opportunity to up the ante against our Marines." [61] A few days later, when
an unidentified White House staff member repeated General Kelley's concern, the Washington Post reported that Senate Democrats were outraged:
"To suggest . . . that congressional insistence that the law be lived up to is somehow giving aid and comfort to the enemy is totally unacceptable," said
Sen. Thomas F. Eagleton (D-Mo.). . . . "The Administration has thrown out a red herring," Eagleton said, with "an attempt to intimidate the Congress
and frighten the American people with this kind of ludicrous argument." This partisan nature of the debate became even more apparent when the
Foreign Relations Committee split completely upon party lines on the deployment, and the minority report was entitled "Minority Views of All
Democratic Members of the Committee." In the end, with several references to avoiding future "Vietnams," the Senate voted 54-46 to allow the
Marines to remain, with but two Senate Democrats supporting the President. But even then, the issue was not over, as Republicans and Democrats
alike emphasized that Congress could reconsider the issue at any time if there were further casualties among the Marines. All of this
partisan bickering was not lost on radical states in the Middle East, and the Syrian Foreign
Minister announced that the United States was "short of breath." [62] The message had also not
escaped radical Muslim militia members in Beirut, and in October U.S. intelligence intercepted
a message between two terrorist units saying: "If we kill 15 Marines, the rest will leave."
Inadvertently, by its partisan debate and repeated pronouncements that further Marine
casualties could provoke another debate and a withdrawal of funds for the deployment (such
legislation had already been reported out of a key House subcommittee), in their partisan effort to invoke the War
Powers Resolution, Congress had essentially placed a bounty on the lives of American forces.
The rest is history. Early on the morning of Sunday, October 23, 1983, a Mercedes truck loaded with highly-sophisticated explosives drove into the
Marine Corps compound at the Beirut International Airport and exploded. America's terrorist enemies had capitalized on
the congressional signals of weakness by murdering 241 sleeping marines, sailors, and
soldiers-more Marines than had been lost on any single day since the height of the Vietnam
War in 1968 and more American military personnel than had been killed in the Gulf War,
Grenada, Haiti, Somalia, the Former Yugoslavia, and all other military operations since
Vietnam until the September 11, 2001 attack on the Pentagon.
Lastly, crisis and emergencies necessitate strong presidential authority.
Andrew Rudalevig, Associate Professor of Political Science, Dickinson College,
2005, The New Imperial Presidency, Ann Arbor, U of Mich Press, p. 275-6.
One dimension of the change surely stems from previous discussion during periods of uncertainty or danger a
strong presidency is genuinely seen as a positive good. Recent congressional debater is laced
with references to the need for forceful, unified leadership in troubled times. “Success in time
of war requires cohesion and unity,” noted Rep. Tom Lantos (D-CA). “If you study the sweep of history in
the United States and the history of the Presidency,” Sen. Richard Durbin (D-IL) orated, “you understand
that at times of crisis the President has an opportunity to rally the American people, to
summon them to a higher calling and a greater commitment than they might otherwise reach.
Time and again, each President faced with a national challenge has tried his best to do just that.”
Thus, the core debate about reducing presidential war powers asks us to consider the advantage of
restoring balance of powers and stopping presidential military adventurism versus the disadvantage of
Presidential War Powers 73
undermining necessary presidential flexibility and speed to deal with rapidly changing strategic and
tactical situations.
B. Terrorism Credibility DA
Many advocates of a strong presidency contend that only a strong executive with full war
decision-making powers has the flexibility to deal with threats of proliferation and WMD terrorism. For
instance:
JOHN PAUL ROYAL, Institute of World Politics, “War Powers and the Age of Terrorism,” Center
for the Study of the Presidency & Congress The Fellows Review, 2010-2011,
Proliferation of weapons of mass destruction (WMD), especially nuclear weapons, into the hands of
these terrorists is the most dangerous threat to the United States. We know from the 9/11
Commission Report that Al Qaeda has attempted to make and obtain nuclear weapons for at
least the past fifteen years. Al Qaeda considers the acquisition of weapons of mass destruction
to be a religious obligation while “more than two dozen other terrorist groups are pursing
CBRN [chemical, biological, radiological, and nuclear] materials” (National Commission 2004, 397). Considering these
statements, rogue regimes that are openly hostile to the United States and have or seek to develop nuclear weapons capability
such as North Korea and Iran, or extremely unstable nuclear countries such as Pakistan, pose a special threat to
American national security interests. These nations were not necessarily a direct threat to the Unite d States in the
past. Now, however, due to proliferation of nuclear weapons and missile technology, they can inflict damage at considerably higher
levels and magnitudes than in the past. In addition, these regimes may pursue proliferation of nuclear weapons and missile
technology to other nations and to allied terrorist organizations. The United States must pursue condign
punishment and appropriate, rapid action against hostile terrorist organizations, rogue nation
states, and nuclear weapons proliferation threats in order to protect American interests both
at home and abroad. Combating these threats are the “top national security priority for the
United States... with the full support of Congress, both major political parties, the media, and the American
people” (National Commission 2004, 361). Operations may take the form of pre-emptive and sustained
action against those who have expressed hostility or declared war on the United States. Only
the executive branch can effectively execute this mission , authorized by the 2001 AUMF. If the national
consensus or the nature of the threat changes, Congress possesses the intrinsic power to rescind and limit these powers.
Other scholars argue that congressional war decisions are problematic because congressional
compromise in overseeing war decisions would create a sign of weakness and lack of US resolve:
Paul W. Kahn, Robert W. Winner Professor of Law and Humanities at Yale Law
School, “THE SEVENTH ANNUAL FRITZ B. BURNS LECLTURE THE WAR POWERS RESOLUTION
AND KOSOVO: WAR POWERS AND THE MILLENNIUM,” Loyola of Los Angeles Law Review,
November, 2000, pp. LN.
Domestically, Congress often works best through a process of articulation of policy differences and
then compromise. The parties set out widely divergent positions as an initial matter. This allows them to establish distinct
identities, which in turn allows appeals to different groups of constituents. Difference is then overcome through a process of
negotiated compromise. Compromise is often made possible by the fact that it can be multidimensional: in seeking to achieve a
Presidential War Powers 74
compromise in one area, bargains can be made in other areas. Compromise occurs not only within Congress, but
in the process of negotiation between the Congress and the executive. n58 To fully understand the act
of negotiating compromise, moreover, one must consider the role of Washington lobbyists who provide information and coordinate
interest group positions. n59 This process of party differentiation followed by compromise produces
consensus around the middle, which is generally the safest position in American politics.
Americans tend to distinguish between politics and government, and do not like it when government [*29] is driven too explicitly by
political ends. n60 They generally expect their politicians to shed the party differentiating ideologies that get them elected and to
tend to the task of governance under standards of policy rationality. When this process of compromise appears too risky, when it
cuts too deeply into the entrenched political positions of the parties, we have seen appeals to bipartisan, expert commissions, the
responsibility of which is to articulate the middle ground and so to relieve the pressure on the politicians as they move toward a
common ground. n61 With respect to foreign affairs, however, these techniques of congressional
decision-making work poorly. The differentiation that marks the parties as distinct and separate, and is domestically an
initial step toward compromise, serves the same differentiating function in foreign policy, but there it tends to freeze party
positions. Treaties come before the Senate too late in the process for compromise to be an option, particularly when they are
multiparty covenants. n62 Moreover, compromises can look like concessions of U.S. interests to foreign states, rather than a
distribution among competing elements of the polity. Nor is there a great deal of pressure to compromise. Rejecting foreign policy
initiatives is a way of preserving the [*30] status quo, and preserving the international status quo is rarely a policy for which one is
held politically accountable. It is hard to make an issue out of a failure to change the conditions that prevail internationally, when
the country is enjoying power, prestige, and wealth. Unable to compromise, the Senate can end up doing nothing, and then treaty
ratification fails. Difference leads to stalemate, rather than to negotiation. The problem is greatly exacerbated by the two-thirds
requirement for ratification. n63 This structural bias toward inaction accounts in part for the use of executive agreements in place of
treaties. n64 These agreements make use of some of the tactical advantages of presidential initiative. Many of the structural
problems remain, however, when executive agreements require subsequent congressional approval. If the issue involves
the use of force, compromise is particularly difficult. A compromise that produces a less
substantial response to a foreign policy crisis can look like a lack of commitment.
Disagreement now threatens to appear to offer an "exploitable weakness" to adversaries.
Congress cannot simply give the president less of what he wants, when what he wants is a military deployment. There cannot
easily be compromises on a range of unrelated issues in order to achieve support for a military
deployment. While that may happen, it has the look of disregard for the national interests and of putting politics ahead of the
public interest. Nor can Congress easily adopt the technique of the expert commission. n65 The timeframe of a crisis usually will not
allow it. More importantly, the military - particularly in the form of the Joint Chiefs of Staff - has already preempted the claim of
expertise, as well as the claim to be "apolitical." [*31] Finally, there is little room for the private lobbyist with respect to these
decisions. Congress, in short, is not capable of acting because it only knows how to reach
compromise across dissensus. When disagreement looks unpatriotic, and compromise
appears dangerous, Congress is structurally disabled. This produces the double consequence for American
foreign policy of a reluctance to participate in much of the global development of international law - outside of those trade and
finance arrangements that are in our immediate self-interest - and a congressional abdication of use of force decisions to the
president. The same structural incapacities are behind these seemingly contradictory results.
C. International Peacekeeping/Human Rights Enforcement DA
Another argument advocates of strong presidential war powers advance is that increased
congressional oversight of military operations would lead to inaction (real or perceived) towards
international humanitarian interventions that are necessary to protect human rights. While the evidence
provided here is rather generic, there are a number of specific international situations where
intervention is likely unpopular with Congress that could act as scenarios for this type of argument.
Paul W. Kahn, Robert W. Winner Professor of Law and Humanities at Yale Law
School, “THE SEVENTH ANNUAL FRITZ B. BURNS LECLTURE THE WAR POWERS RESOLUTION
AND KOSOVO: WAR POWERS AND THE MILLENNIUM,” Loyola of Los Angeles Law Review,
November, 2000, pp. LN.
Presidential War Powers 75
The international law of human rights, which owes its very existence to an institutional situation in which it was not and could not be
effective, has suddenly become the normative core of a new post-Cold War global order. The gross violations of human
rights in Haiti, West Africa, the states of the former Yugoslavia, Cambodia, Somalia, and
Rwanda have prompted international responses. Those responses have often been inadequate, and there have
been numerous failures to respond, but that there should be a response is now accepted. That there can be a response comes well
within the range of the ordinary political imagination. Increasingly, it is the failure to intervene, not intervention
that requires explanation. We saw this most dramatically, for example, in the recent
intervention in East Timor. We are, of course, far less certain about the relative ordering of human rights and state
sovereignty norms when we deal with China and Russia than when we deal with states of Africa, Southeast Asia, and Latin America.
Yet the change is undeniable: the relentless discourse - academic, popular, and official - on the emerging global order continually
holds up a vision of international human rights. The Cold War is a receding memory; the only deployments of force that we imagine
in the short and medium term are those that would enforce human rights norms. n93 Even those we cast as "enemies" - for
example, the regimes of Iraq, Serbia, or perhaps North Korea - [*42] we understand, within a human rights framework: it is not the
people of the state, but the regime that we oppose. The people, we believe, suffer from the human rights abuses of their
governments. They too are victims. These are not enemy states, but "rogue" regimes. Intervention is seen as a matter of enforcing
human rights norms, even if it is the case that innocent people suffer the consequences of the intervention. The pressing
question today is not "what is the distribution of foreign affairs power between Congress and
the president?" but rather, "what is the institutional mechanism through which the United
States will assume its role in the emerging global order?" Too often, American constitutional lawyers see the
issue here as one that rests merely on differences of political belief: is the U.S. role one of forceful, international leadership or is it
one of withdrawal from entanglements abroad? Following Holmes's dictum that the Constitution is made for people of widely
different views on issues of policy, n94 there is a tendency to believe that interpretation of the war
powers provisions must proceed in a way that is independent of such policy considerations.
But this distinction between law and policy disables the debate from the beginning. The deep
and complex issue here involves the manner in which two different conceptions of the rule of
law will intersect in the next generation. V. Changing Interpretations of Congressional War
Powers Every interpretation of the constitutional distribution of war powers occurs against a
sense of the imaginable uses of force - the kinds of force that can be used and the ends for
which it would be used. This was true at the time of the drafting, and it remains true today. A reading that renders the
United States unable to defend itself or to pursue its vital interests fails a test of minimal plausibility. n95 Equally, however, an
interpretation develops against a perception of the possible abuses of power, which a constitutional structure should be designed to
mitigate. The authority to deploy force, like every other constitutional power, is simultaneously the power to pursue [*43] national
interests and to commit abuses - indeed, particularly dangerous abuses. Arguments often occur because where one interpreter sees
vital national interests, another sees an abuse of power. Whether a deployment of force is perceived as
necessary or abusive depends, in substantial part, on the way in which one perceives American
interests to align or fail to align with the norms of the international order. Those norms,
however, do not remain stable. The world of 1900 - at least the developed world - was still largely structured by the
Peace of Westphalia, while today's norms increasingly express a global order of human rights. In between,
we experienced the rise of ideological politics, leading first to the Second World War, and then to the Cold War. To think that
the vision of United States v. Curtis-Wright Export Corp., n96 let alone the drafters' vision of 1787, is
particularly relevant to the American position in this new world order is to come to the debate
with a wholly inadequate set of intellectual tools, unless one is so deeply committed to an idea of American
exceptionalism that nothing that actually happens in the world can make any difference [Substantial cut in the
article for purposes of space]….To attempt to reinvigorate Congress's war declaring
role would only exacerbate this problem of incongruity. It would be an act of international
irresponsibility framed as a matter of constitutional responsibility. Here, the courts have paved the way
for a quiet abandonment. Congress's war powers have not been judicially enforceable; it would be a disaster were they to become
so. We do not need eighteenth century solutions to twenty-first century problems.
Presidential War Powers 76
D. Modeling DAs
U.S. Constitutional structure has been used as a model for several others nations. Our system of
checks and balances between Congress and the President is one aspect that has been specifically
modeled. Restoring the legitimacy of that system could cause other nations to model that structure,
which could create dangerous situations in other countries.
Steven Calabresi, George C. Dix Professor of Constitutional Law, Northwestern
University, & Kyle Bady, JD Candidate, Northwestern, “Is the Separation of Powers
Exportable?” Harvard Journal of Law & Public Policy, Vol. 33, No. 1, Winter 2010.
We both think American-style presidential separation of powers regimes are exportable and
desirable under some carefully controlled circumstances. Like Professor Linz, we would not
recommend such a regime for a country polarized into two hostile religious or ethnic camps.3
We also would not recommend a presidential separation of powers regime for third - world
countries suffering from a history of dictatorship or rule by caudillos or strongmen like Russia.
But we do recommend a presidential separation of powers regime for federal polities that have multiple cross-cutting cleavages, a
recent history of democratic rule, a majoritarian electoral system, strong member states within the federation, and a need for a
more assertive federal foreign policymaking apparatus. We want in this Essay to make the perhaps startling argument that the
European Union is such a polity and that it needs a presidential separation of powers system like the one in the United States if it is
to be - come a successful federation rather than merely a confederation.4 In so arguing, we realize of course that there is no chance
at all of such a presidential separation of powers system being adopted. Nonetheless, if we can show that it would be a good thing
for the people of the European Union to elect a president directly that would surely be relevant to the question of whether it is ever
desirable for a presidential separation of powers system to be exported.
E. Politics DA
Yes, we include Politics as the 5th option because we believe that the topic offers a robust
enough negative debate that politics should not have to be the primary negative option for most teams.
Yet, as another advantage for this controversy, the links on the politics disad will obviously have a
different spin than we’ve seen on the last several topics, requiring some rethinking of the argument.
While the negative could make a persuasive argument that President Obama would likely push more
energy production, democracy assistance, and visas, losing political capital in the process by getting
drawn into a partisan fight, it is unlikely the negative will be able to persuasively argue Obama would
push a plan that increased constraints on Commander-in-chief powers.
However, for those whom the politics DA links are more or less a deal breaker when voting for a
topic, you can sleep easy. Political scholars have noted how Presidents, when forced to defend their war
powers, have lost considerable amounts of political capital. These consequences can potentially
spillover to the broader domestic political agenda.
Presidential War Powers 77
Douglas L. Kriner, assistant professor of political science at Boston University, “After the
Rubicon: Congress, Presidents, and the Politics of Waging War”, University of Chicago Press, Dec
1, 2010, page 68-69
While congressional support leaves the president’s reserve of political capital intact,
congressional criticism saps energy from other initiatives on the home front by forcing the
president to expend energy and effort defending his international agenda. Political capital
spent shoring up support for a president’s foreign policies is capital that is unavailable for his
future policy initiatives . Moreover, any weakening in the president’s political clout may have
immediate ramifications for his reelection prospects, as well as indirect consequences for congressional races.59
Indeed, Democratic efforts to tie congressional Republican incumbents to President George W. Bush and his war policies paid
immediate political dividends in the 2006 midterms, particularly in states, districts, and counties that had suffered the highest
casualty rates in the Iraq War. 60 In addition to boding ill for the president’s perceived political capital
and reputation, such partisan losses in Congress only further imperil his programmatic
agenda, both international and domestic. Scholars have long noted that President Lyndon
Johnson’s dream of a Great Society also perished in the rice paddies of Vietnam. Lacking the requisite
funds in a war-depleted treasury and the political capital needed to sustain his legislative vision, Johnson
gradually let his domestic goals slip away as he hunkered down in an effort first to win and
then to end the Vietnam War. In the same way, many of President Bush’s highest second-term
domestic proprieties, such as Social Security and immigration reform, failed perhaps in large part because
the administration had to expend so much energy and effort waging a rear-guard action
against congressional critics of the war in Iraq.61 When making their cost-benefit calculations,
presidents surely consider these wider political costs of congressional opposition to their
military policies. If congressional opposition in the military arena stands to derail other
elements of his agenda, all else being equal, the president will be more likely to judge the benefits
of military action insufficient to its costs than if Congress stood behind him in the
international arena.
And we may see a re-birth of the “losers-lose” type links
Dr. Andrew J. Loomis is a Visiting Fellow at the Center for a New American Security, and Department of Government at
Georgetown University, “Leveraging legitimacy in the crafting of U.S. foreign policy”, March 2, 2007, pg 36-37,
Traditional theories assert that international relations ought to be understood solely in terms
of the masculine concepts state, sovereignty, war and power . Feminine notions, primarily in
the domestic sphere, are not considered to be relevant. As such the dominant Realist and
Liberal theories in the discipline maintain a sharp dichotomy between interstate, political,
public, masculine and intrastate, domestic, private, feminine and assign significance only to
the former, thereby disregarding the impact of the latter. It is not possible in the space of this essay to
explore in depth the ways in which all of these concepts are exposed as gendered by feminist theorists, and the significance that so
doing has for the discipline of international relations. Power emerges as central in traditional theories, to
both the study and practice of international relations. In this essay I will explore how feminist theorists have
interpreted the concept of power, as it exists in traditional international relations theories, as it manifests in international order and
how it might be reformulated to better accommodate gender into the discipline, allowing a deeper and more accurate
understanding of the international.
3. Racial Criticisms
One of the interesting aspects of recent criticisms of presidential war authority is the racial
nature of some of the more outspoken critics of Obama’s war powers: white conservatives (many who
also make birther arguments) who were rather silent during the white Bush administration’s moves to
expand WoT presidential powers. A powerful racial critique of the fear of the unchecked black president
seems possible. Additionally, there are other interesting intersections between racial protest and strong
presidential power that could be investigated by negatives. For example,
Sidney M. Milkis & Daniel J. Tichenor, 2011, Milkis is the White Burkett Miller Professor of
the Department of Politics and Assistant Director for Democracy and Governance Studies at the
Miller of Public Affairs at the University of Virginia; Tichenor is Philip H. Knight Professor of
Social Science and Senior Faculty Fellow at the Wayne Morse Center for Law and Politics,
“Reform’s Mating Dance: Presidents, Social Movements, and Racial Realignments,” Journal of
Policy History, Volume 23, Number 4, 2011
We argue that both presidents and social movements have played leading roles in the
development of major legal and policy innovations that recast race relations in the United States.
Presidential War Powers 86
More precisely, the uneasy partnership of these two forces has served as an important catalyst for
advancing civil rights reform in key periods of American political development. As much as scholars
have devoted scant attention to the relationship between the presidency and social movements, the few works that do probe the
subject tend to emphasize the inherent conflict between a centralizing institution tasked with conserving the constitutional order
and grass-roots associations dedicated to structural change.1 Even presidents with large reform ambition have had to keep some
distance from social movements and causes so as to avoid alienating the support necessary to secure a national consensus for their
programs; at the same time, political insurgents have viewed alliances with presidents as a threat to their dedication to values that
pose severe challenges to core American principles.2 There is a hint of caricature here, with presidents cast as regularly indifferent,
resistant, or openly repressive toward insurgent causes and social movements deemed too hamstrung by radical visions or
noninstitutionalized tactics to engage effectively in the art of political compromise. In this article, we take stock of the conflicts and
rivalries between these political actors, but we also want to reach beyond them to focus on key moments of American political
development when executives and insurgents have needed each other. Presidents sometimes find themselves at the center of
national crises where conserving the Constitution requires a redefinition of the social contract. Social activists sometimes seek to
secure the rights of the dispossessed and to advance moral causes not merely by opposing the existing order of things but through a
principled commitment to reconstituting it. Both presidents and social movements have the potential to be important agents of
change during critical junctures of American political history, albeit typically from very different vantage points. To grasp the
tense yet essential relationship that sometimes has joined presidents and social movements,
we consider it crucial to develop an analytical framework that emphasizes neither executive
power nor insurgency but, rather, the fascinating interplay between them. In particular, our aim
is to illuminate the dynamics that sometimes allow presidents and social movements to come
together and to achieve critical breakthroughs and enduring reform. Equally important, it is
necessary to specify the political, legal, and [End Page 452] administrative legacies of these
breakthroughs over time. We seek to lay the groundwork for such analysis by considering three dynamics over time: (1)
the agency of presidents with broad authority to exercise power and to pursue ambitious
policy change, (2) the leverage of social movements with the capacity to employ both conventional and
disruptive political tactics, and (3) the mediating role played by party politics, Congress, and national
administration. We explore these institutional factors in two cases that offer useful variation, both on the dynamics of reform
breakthroughs and on the administrative and political legacies of these innovations: Abraham Lincoln’s relationship with the
Abolitionist movement and Lyndon Johnson’s with the civil rights movement. Racial politics offers an especially
fruitful avenue to explore the executive-social movement nexus. As “a lived experience, a hierarchically
ranked social category, and a site of institutional action,” race “can help us transcend the false divide between culture and identity,
on the one hand, and institutions and structure on the other.”3 Our approach to race and American political development embraces
the charge by Desmond King and Rogers Smith to carefully consider “enduring tensions between and within the nation’s racial
orders.”4 But whereas King and Smith’s framework emphasizes the conflict over race in American politics, we train a spotlight on the
contentious partnership between executive power and insurgency that has led to important breakthroughs in civil rights. By
exploring how the collisions and collaborations of social movements and presidents have influenced race relations and civil rights
policy in the United States, we build on earlier work by race, gender, and ethnicity scholars who have sought to explicate the
institutional dynamics that sustain invidious discrimination in American political development.5 But our findings point to
the productive friction between competing agents of reform and their distinctive political and
policy legacies.
4. Critical Legal Studies & Critiques of Legal Liberalism
Both conservative and liberal legal critics have a number of indictments of Legal Liberalism,
which is grounded in the faith that the law and constitutional structures works. For example, Eric Posner
and Adrian Vermeule draw on Carl Schmitt’s critique of liberal legalism and its attempt to structurally
contain the executive branch based on a classical rule-of-law theory of the state.
Eric A. Posner, Kirkland & Ellis Distinguished Service Professor of Law and Aaron
Director Research Scholar at the University of Chicago, and Adrian Vermeule,
Presidential War Powers 87
John H. Watson, Jr. Professor of Law at Harvard Law School, The Executive
Unbound: After the Madisonian Republic, Oxford: Oxford University Press, USA, 2011.
Our thesis is that these modifications to liberal legalism fail. Either they do not go far enough to square with the
facts, or they go so far as to effectively abandon the position they seek to defend. We live in a regime of executive-centered
government, in an age after the separation of powers, and the legally constrained executive is
now a historical curiosity. As against liberal constitutional theorists like James Madison, Bruce Ackerman,1 and Richard Epstein,2 and
liberal theorists of the rule of law like Albert Venn Dicey 3 and David Dyzenhaus, 4 we argue that in the modern administrative state the executive
governs, subject to legal constraints that are shaky in normal times and weak or nonexistent in times of crisis. Whereas Madison is an
exemplar of liberal legalism, particularly in the domain of constitutional theory, we draw upon
the thought of the Weimar legal theorist Carl Schmitt . We do not agree with all of Schmitt ’s views, by any means. To
the extent Schmitt thought that democratic politics do not constrain the executive, or thought that in the administrative state the executive is not only
largely unconstrained by law but also unconstrained tout court , we disagree. Indeed, to the extent that Schmitt thought this, he fell into a
characteristic error of liberal legalism, which equates lack of legal constraint with unbounded power. But Schmitt’s critical arguments
against liberal legalism seem to us basically correct, at least when demystified and rendered
into suitably pragmatic and institutional terms. A central theme in Schmitt ’s work, growing out of
Weimar’s running economic and security crises in the 1920s and early 1930s, involves the relationship between the
classical rule-of-law state, featuring legislative enactment of general rules enforced by courts,
and the administrative state, featuring discretionary authority and ad hoc programs, administered by the executive,
affecting particular individuals and firms. The nub of Schmitt ’s view is the idea that liberal lawmaking
institutions frame general norms that are essentially “oriented to the past,” whereas “the
dictates of modern interventionist politics cry out for a legal system conducive to a present-
and future-oriented ‘steering’ of complex, ever-changing economic scenarios.”5 Legislatures and courts, then, are
continually behind the pace of events in the administrative state; they play an essentially
reactive and marginal role, modifying and occasionally blocking executive policy initiatives, but rarely taking the lead. And in crises, the
executive governs nearly alone, at least so far as law is concerned. In our view, the major constraints on the executive,
especially in crises, do not arise from law or from the separation-of-powers framework
defended by liberal legalists, but from politics and public opinion. Law and politics are hard to separate and lie
on a continuum—elections, for example, are a complicated mix of legal rules and political norms—but the poles are clear enough for our purposes, and
the main constraints on the executive arise from the political end of the continuum. A central fallacy of liberal legalism, we argue,
is the equation of a constrained executive with an executive constrained by law. The pressures
of the administrative state loosen legal constraints, causing liberal legalists to develop
tyrannophobia, or unjustified fear of dictatorship. They overlook the de facto political constraints that have grown up
and, to some degree, substituted for legal constraints on the executive.6 As the bonds of law have loosened, the bonds of politics have tightened their
grip. The executive, “unbound” from the standpoint of liberal legalism, is in some ways more
constrained than ever before.
VI. Potential directions for wording papers
Given that presidential war powers, particularly in the recent era, have been evoked to justify a
number of policies, we recommend a list topic. A list would allow wording papers to focus on similar
presidential war powers and would allow the community to choose which types of these broad powers
they would like to debate. We narrowed this controversy paper to what we believe to a fairly similar set
of presidential powers, but this does not mean that later wording papers could not advocate for other
groups of presidential powers.
Presidential War Powers 88
A. The Mechanism
The mechanism we see throughout the literature is to “increase or enact statutory limitations”
on presidential power. For example, statutory limitations restrict executive war powers:
William M. Hains, “Challenging the Executive: The Constitutionality of Congressional Regulation
of the President's Wartime Detention Policies,” Brigham Young University Law Review, 2011,
pp. LN.
n78. " It is common for defenders of presidential prerogatives to conflate inherent ... executive
war powers with preclusive ones, and to assume that any powers granted by Article II must
also be immune from statutory limitation ." Barron & Lederman, Framing the Problem, supra note 1, at 741-43.
However, inherent presidential power is relevant to a Youngstown Category II analysis (where
the President acts in the absence of congressional action), not a Youngstown Category III
analysis (where Congress has acted to limit the President's authority).
n79. If the President's power is independent, it arises out of the Constitution rather than legislation. But deciding that a
presidential power is independent of Congress does not answer the question of whether the
authority is exclusive or shared. See Lobel, supra note 75, at 447-49 (distinguishing "exclusive" from "independent" and
"inherent" power); id. at 464 ("That the President has independent power stemming from his Commander in Chief power means
that he can act independently of congressional authorization, not in disregard of it."). As with "inherent," this term is more
appropriate for a Youngstown Category II analysis. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson,
J., concurring) ("When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his
own independent powers ... .").
The War Powers Resolution is an example of a statutory limitation.
Adrian Vermeule, Professor of Law, Harvard Law School, 2006,
“THE EMERGENCY CONSTITUTION IN THE POST-SEPTEMBER 11 WORLD ORDER: SELF-DEFEATING
PROPOSALS: ACKERMAN ON EMERGENCY POWERS,” Fordham Law Review, Nov., pp. LN.
Political constraints. Ackerman's framework statute is supposed to perform a constitutional function. It reorganizes governmental
powers during an emergency, and then ensures that they return to normal after the emergency expires. A statute could, in principle,
perform such constitutional functions by aligning the various parties' expectations about the future, which then provide a basis for
objecting to usurpations or interference when the emergency occurs. However, history shows that statutory
limitations are weak during emergencies. The War Powers Resolution , which limited the
circumstances under which the President could use military force and imposed various
reporting requirements when the President did use force, has been ignored. As I mentioned above,
the National Emergencies Act similarly imposed restrictions and reporting requirements on
the President's power to declare emergencies, and the International Emergency Economic
Powers Act limited the President's power to impose economic sanctions during emergencies. None of these [*647] statutes has had much of an impact on the behavior of executives. n61 Finally, after 9/11 the President
undertook a program of domestic warrantless surveillance, one that in the view of many commentators clearly violates the Foreign
Intelligence Surveillance Act. n62 Public opinion, however, is divided about the program's legality. n63 As of this writing, there seems
little prospect that Congress will retaliate; the most likely outcome is some sort of legislative ratification of the program, which
means that the President will have effectively annulled the Foreign Intelligence Surveillance Act as well as the other framework
statutes governing executive action in emergencies.
Presidential War Powers 89
The Supreme Court can enforce statutory limitations against the Command in Chief.
David J. Barron, Professor of Law, Harvard Law School, & Martin S. Lederman,
Visiting Professor of Law, Georgetown University Law Center, 2008, “THE
COMMANDER IN CHIEF AT THE LOWEST EBB - FRAMING THE PROBLEM, DOCTRINE, AND
ORIGINAL UNDERSTANDING,” Harvard Law Review, January, pp. LN.
Perhaps because the question of how to determine what should happen at the "lowest ebb" has long been of only marginal
scholarly interest, it has been obscured by a dense fog of half-developed and largely unexamined intuitions. Chief among these is the
notion, supposedly deeply embedded in the constitutional plan, that the Commander in Chief Clause prevents Congress from
interfering with the President's operational discretion in wartime by "directing the conduct of campaigns." n5 Or, as it is sometimes
more broadly put, the idea is that Congress may not regulate the President's judgments about how best to defeat the enemy - that
the Commander in Chief's discretion on such matters is not only constitutionally prescribed but is preclusive of the exercise of
Congress's Article I powers. n6 In its most persuasive form, the Bush Administration's assertion of preclusive
executive war powers rests on precisely this contention - that Congress cannot "dictate strategic
or tactical decisions on the battlefield." n7 It follows from that premise, the Administration
argues, that Congress may not enact statutes restricting troop levels in Iraq or defining the
mission of the armed forces operating there. Nor may it "place any limits on the President's
determinations as to any terrorist threat, the amount of military force to be used in response,
or the method, timing, and nature of the response." n8 "These decisions," [*695] claims the Bush
Administration, "under our Constitution, are for the President alone to make." n9 There is an understandable
temptation to dismiss as aberrant constitutional claims that are so broad and unconditional.
Indeed, the Supreme Court's decisions in high-profile war powers cases that have enforced
statutory limitations against the Commander in Chief might be thought to justify one's doing
so. But in fact, the Court's message in these cases is much more equivocal than is often acknowledged. n10 And just as appeals to
judicial precedent cannot resolve the issue, neither can the various distinctions that war powers analysts and scholars have often
invoked to cabin such preclusive executive powers, such as those between so-called framework statutes and detailed regulations of
the battlefield, or between ex ante measures and statutes enacted in the midst of a specific operation. n11 In our view, these
taxonomies are much less capable of identifying the bounds of preclusive executive war powers than is usually acknowledged. The
issue, therefore, is less whether a test for defining such inviolate powers of presidential tactical discretion can be enunciated than
whether it is justifiable to accept in the first place the common premise that Congress may not enact legislation that "interferes with
the command of the forces and the conduct of campaigns." n12
Statutory Limitations are most commonly used in the literature. However, it has been difficult to find a
card that offers a precise definition of the term.
Another option would be “Statutory Restrictions”, which is similar to statutory limitations, and is
defined by Black’s Law Dictionary as, “Limits or controls that have been place on activities by its ruling
legislation.”76 Another option might be “congressional limitations.” For instance,
David J. Barron, Professor of Law, Harvard Law School, & Martin S. Lederman,
Visiting Professor of Law, Georgetown University Law Center, 2008, “THE
COMMANDER IN CHIEF AT THE LOWEST EBB - FRAMING THE PROBLEM, DOCTRINE, AND
ORIGINAL UNDERSTANDING,” Harvard Law Review, January, pp. LN.
Over the past half-century, discussions of constitutional war powers have focused on the scope of the
President's "inherent" power as Commander in Chief to act in the absence of congressional
authorization. In this Article, Professors Barron and Lederman argue that attention should now shift