The Torture Papers: The Road to Abu Ghraib, edited by Karen

Your relationship with government is simple: government knows everything about you, and you know nothing about government. In practice this means government can do whatever it wants to you before you know it's going to happen. Government policy makers think this is a good way of ensuring citizen compliance. Thus, all of these investigations are retrospective -- they look back at the squirrely shit that government has pulled, and occasionally wring their hands about trying to avoid it happening in the future. Not inspiring reading, but necessary if you are to face the cold reality that Big Brother is more than watching.

Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 7:01 pm

Opening Pages

THE TORTURE PAPERS

The Torture Papers consists of the so-called "torture memos" and reports that the U.S. government officials wrote to authorize and to document coercive interrogation and torture in Afghanistan, Guantanamo, and Abu Ghraib. This volume of documents presents for the first time a compilation of materials that prior to publication have existed only piecemeal in the public domain. The Bush Administration, concerned about the legality of harsh interrogation techniques, understood the desirability of establishing a legally viable argument to justify such procedures. The memos and reports in this volume document the systematic attempt of the U.S. government to authorize the way for torture techniques and coercive interrogation practices, forbidden under international law, with the concurrent express intent of evading liability in the aftermath of any discovery of these practices and policies.

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Karen J. Greenberg is the Executive Director of the Center on Law and Security at the New York University School of Law, and editor of the NYU Review of Law & Security.

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Joshua L. Dratel is President of the New York State Association of Criminal Defense Lawyers and serves on the Board of Directors of the National Association of Criminal Defense Lawyers and is lead defense counsel for David Hicks, an Australian detainee at Guantanamo.

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[Back Jacket]

"THE TORTURE PAPERS may well be the most important and damning set of documents exposing U.S. government lawlessness ever published ... Each page tells the story of U.S. leaders consciously willing to ignore the fundamental protections that guarantee all of us our humanity. I fear for our future. Read these pages and weep for our country, the rule of law and victims of torture everywhere." -- MICHAEL RATNER, President of the Center for Constitutional Rights

"With this superb collection of documents, we can begin to see the contours of our new post-9/11 world: from the reinterpretation of laws and treaties that once seemed immutable, to the pressure on soldiers and CIA officers in the field to set aside old rules in the hunt for useable intelligence. The papers speak for themselves and readers can decide whether the trade-offs are worth it or not." -- DANA PRIEST, National Security Reporter, The Washington Post

"Not since the Pentagon Papers have we seen such an important set of classified documents as the memoranda, reports and orders on detention and interrogation that began emerging into public view in the United States. Cambridge University Press is serving an important need in providing these papers in one authoritative and well-organized collection." -- MARY-ELLEN O'CONNELL, Professor of International Law, Ohio State University

"This book is a must read for anyone who cares about the role the United States plays on the world scene. It describes the steps in an ominous path leading from the high road down to the low road in the words of those who took that journey. Throughout our history, the United States has taken justifiable pride in our adherence to the Rule of Law and our strong advocacy for human rights. Read THE TORTURE PAPERS and see for yourself if that is still true. If we do not have the courage and wisdom to confront this shameful episode, then we are bound to repeat it." -- JOHN D. HUTSON (Rear Adm. Ret.), Dean & President, Franklin Pierce Law Center

"The memos and other material collected in this book reveal how political lawyers in the Administration adopted an 'ends justify the means' policy, and tailored their advice to justify torture and avoidance of obligations under the Geneva Conventions. They lost their own moral compass in the process and created a brief for the enemies of America to use the tactics they sought to justify against present and future American servicemen and women captured by our enemies." -- JAMES CULLEN (Brig. General U.S. Army Ret.)
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 7:01 pm

Acknowledgments

This volume could not have been produced without the dedicated work of many of our colleagues. In particular we would like to thank Kristin Henderson for her tireless and painstaking work helping to research, compile, and edit these documents. For his service and information, we'd like to thank Major Michael D. Mori and for his expertise, Sam A. Schmidt. For their research, we'd like to thank Elizabeth Besobrasow and Steven Wright. We thank Andrew Peterson for his work on the index. Overall, we are indebted to the staff of the Center on Law and Security for supporting this volume in its early stages.

All of the above have helped bring this volume into being and we are therefore duly grateful.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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Introduction
Anthony Lewis


The Torture Papers: The Road to Abu Ghraib includes the full texts of the legal memoranda that sought to argue away the rules against torture. They are an extraordinary paper trail to mortal and political disaster: to an episode that will soil the image of the United States in the eyes of the world for years to come. They also provide a painful insight into how the skills of the lawyer -- skills that have done so much to protect Americans in this most legalized of countries -- can be misused in the cause of evil.

We have the legal memoranda because committed reporters, from The Washington Post and others in the press, ferreted them out -- until, finally, the government released official texts. Without the press, indeed, the whole torture episode might have remained hidden. The television program Sixty Minutes and Seymour Hersh, in The New Yorker, told the world what had gone on in Abu Ghraib and showed us the pictures. They relied on the unchallengeable findings of an inquiry by Major General Antonio M. Taguba into the conduct of a military police brigade in Iraq. The Taguba Report, too, is in The Torture Papers.

The mindset that produced the legal memos is easy enough to see. After the terrorist attacks of September 11, 2001, the Bush Administration reasoned that the United States was up against an enemy more insidious than any the country had faced. To defeat terrorism, it felt, we must have intelligence on the plans of al Qaeda and others. The United States lacked what is called human intelligence: spies inside terrorist organizations. So officials focused on the hope of getting information by questioning captured terrorist suspects. They asked lawyers in the Justice Department and the Defense Department what methods could be used to extract information from suspects without violating the law.

Any lawyer acting for a business must be asked by its officials, from time to time, "Can we do this?" The lawyer understands that the company executives want her to say "Yes." She is expected to spell out how the company can do what it wants without getting into legal trouble. That was the implicit scenario here. Lawyers were asked how far interrogators could go in putting pressure on prisoners to talk without making themselves, the interrogators, liable for war crimes. Or if that was not the specific question put to the lawyers, they well understood that that was the issue. They responded with the advice that American interrogators could go very far -- to the brink of killing prisoners -- and not face legal consequences.

"Physical pain amounting to torture." Assistant Attorney General Jay S. Bybee advised the Counsel to the President, Alberto Gonzales, "must be equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function or even death."

That was Bybee's construction of the federal law against torture, to which the United States is a party. He adds that in the Justice Department's view, actions by interrogators "may be cruel, inhuman or degrading, but, still not produce pain and suffering of the requisite intensity."

Reading that advice, one has to imagine an interrogator making nice judgments about the suffering of his victim. In Argentina, during the tyranny of the generals, torturers in secret prisons sometimes had a doctor present at a torture session to judge when the prisoner was in danger of dying. Jacobo Timerman, a newspaper proprietor who was imprisoned by the regime, described how the doctor -- after a torture session -- asked his advice on a financial matter. It was as if the doctor were morally absent from reality.

The premise of the Bush Administration after September 11, 2001, was that the end, fighting terrorism, justified whatever means were chosen. It sought repeatedly to eliminate legal constraints on the means it adopted. Thus in November 2001, President Bush issued an order for trial by military tribunal of non-Americans charged with terrorist crimes. The order forbade the accused from going to any court, American or foreign. Keeping courts out was a major element in several programs.

The legal documents dealt with one large question in addition to the limits on interrogation techniques. That was the status of the hundreds of prisoners brought to the U.S. base at Guantanamo, Cuba, after the war in Afghanistan. Were they protected by the Geneva Convention, which the United States and almost all other countries have signed and which provides for the humane treatment of prisoners taken in conflicts? The Third Geneva Convention lays down rules for deciding whether a captive is a regular soldier, a spy or terrorist, or an innocent person picked up by chance. The issue is to be decided by a "competent tribunal."

In the 1991 Gulf War the American military held 1196 hearings before such tribunals. Most of them found the prisoner to be an innocent civilian. But this time the Bush administration legal memoranda found that the Guantanamo prisoners should not get the hearings required by the Third Geneva Convention.

The fourth memorandum in these volumes, from Deputy Assistant Attorney General John Yoo and another lawyer in the Justice Department's Office of Legal Counsel, Robert J. Delahunty, argued that the Geneva Convention dealt only with state parties, and al Qaeda was not a state. As for Taliban soldiers, it said that Afghanistan under the Taliban was a "failed state" to which the convention also did not apply. Although the Taliban had controlled almost all the country, the memo described it as a mere "militia or faction."

That memo went to White House Counsel Alberto Gonzales on January 9, 2002. Days later President Bush decided that the Third Geneva Convention did not apply to the prisoners at Guantanamo. All of them, he found, were "unlawful combatants" -- a term not found in the convention. He made that finding without any hearings or any opportunity for the prisoners to contest the facts.

On January 26, Secretary of State Powell asked the President to reverse that decision, which he said would "reverse over a century of U.S. policy and practice....and undermine the protections of the law of war for our troops (Memo #8)". The State Department's Legal Adviser, William H. Taft IV, sent a memo (Memo #10) to White House Counsel Gonzales arguing that sticking to Geneva would show that the United States "bases its conduct on its international legal obligations and the rule of law, not just on its policy preferences."

Gonzales rejected the State Department view. In a memorandum (Memo #7) to the President he said, "the nature of the new war [on terrorism] places a high premium on ... the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities ... " He said this "new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners" and made other Geneva provisions "quaint."

The memorandum (Memo #4), submitted on Jan. 9, 2002, by John Yoo and Robert J. Delahunty of the Department of Justice, first raised the idea of overriding presidential power to order the use of torture. It said that "restricting the President's plenary power over military operations (including the treatment of prisoners)" would be "constitutionally dubious."

Seven months later Assistant Attorney General Jay S. Bybee hardened the "constitutionally dubious" argument into a flat assertion of presidential immunity from legal restraints on torture. In a memorandum to White House Counsel Gonzales, Bybee said that in a war like the one against terror, "the information gained from interrogations may prevent future attacks by foreign enemies. Any effort to apply [the criminal law against torture] in a manner that interferes with the President's direction of such core war matter as the detention and interrogation of enemy combatants thus would be unconstitutional."

The argument got further elaboration in a memorandum of March 6, 2003 (Memo #25), from an ad hoc group of government lawyers to Secretary of Defense Donald Rumsfeld, a memo also included in The Torture Papers. "Congress may no more regulate the President's ability to detain and interrogate enemy combatants," it argued, "than it may regulate his ability to direct troop movements on the battlefield." So presidential power overrode the International Convention Against Torture, to which the United States is a party, and the Congressional statute enforcing the convention.

Abu Ghraib became a focus of world attention when the photographs of humiliated prisoners were published. But there was also considerable disquiet about the prison at Guantanamo Bay. There were no incriminating photographs of Guantanamo, and everything about the prison was kept secret. When habeas corpus actions were brought in federal courts to challenge the detention of particular prisoners, the Bush Administration argued that the courts held no jurisdiction to hear the cases. (The Supreme Court eventually rejected that contention.)

But the very secrecy about Guantanamo produced criticism. A judge of Britain's highest court, Lord Steyn, called it a "legal black hole." When some British citizens who had been held there -- after capture not in Afghanistan but in other countries -- were sent home to Britain, they said they had been mistreated.

It also became clear that the American military and the Central Intelligence Agency were holding terrorist suspects at places other than Abu Ghraib and Guantanamo. Some were not listed with the Red Cross, which complained that it was unable to check on the condition of all American prisoners. And some died while under interrogation. One, an Iraqi general, Abed Hamed Mowhoush, was found in an autopsy to have died from "asphyxia due to smothering and chest compression."

What, then, did the legal memoranda on the treatment of prisoners do? A longtime national security advisor to President George H. W. Bush, Donald P. Gregg, wrote in The New York Times that the memoranda "cleared the way for the horrors that have been revealed in Iraq, Afghanistan and Guantanamo and make a mockery of the administration's assertions that a few misguided enlisted personnel perpetrated the vile abuse of prisoners. I can think of nothing that can more devastatingly undercut America's standing in the world or, more important, our view of ourselves, than those decisions."

Jacobo Timerman, the Argentine prisoner mentioned earlier in this introduction, was saved from likely death by pressure from the administration of President Jimmy Carter. He was released and went to Israel. I met him there years later, and we talked about interrogation of prisoners. He asked whether I would agree to torture a prisoner if he knew of a terrorist outrage that would shortly take place. After trying to avoid the question, I finally said, Yes, I would. "No!" he said. "You cannot start down that road."

The Supreme Court of Israel, with many painful examples of terror, agreed with Timerman's view when it considered the question of torture. It rejected the use of torture even when a suspect is thought to know the location of a "ticking bomb."

In an age when the ticking bomb may be a weapon of mass destruction, the question is not always easy to answer. But when officials are tempted to use torture, they should remember that suppositions of what a suspect knows are usually wrong. They should understand that statements extracted by torture have repeatedly been found to be useless. They should know, finally, that torture does terrible damage not only to the victim but to the torturer.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 7:02 pm

From Fear to Torture
Karen J. Greenberg


The word torture, long an outcast from the discourse of democracy, is now in frequent usage. Alongside the word, the practice of torture is now in place as well. The coercive techniques that have been discovered at Abu Ghraib and Guantanamo resulted from advice given by leading figures at the Department of Justice, the Department of Defense, and the White House. The policy came about as the result of a series of memos in which the Administration asked for -- and was granted -- the right to interrogate prisoners with techniques possibly outlawed by the Geneva Conventions and by American military and civil law. The authors of the memos then justified the interrogation techniques on the grounds that in these specific cases, the legal restrictions did not apply. The result is a carefully constructed anticipation of objections at the domestic and international levels and a legal justification based on considerations of failed states, non-state actors, and the national security agenda of the United States.

This volume contains the documentary record of the Bush Administration's path to the coercive interrogation of prisoners held on the suspicion of terrorist activity. Many of the documents included here were brought initially to public attention through the investigative work of reporters at The Washington Post and Newsweek as well as at the American Civil Liberties Union. Through the publication of these documents, we can now reconstruct the chronological, legal, and political story of how a traditionally banned form of interrogation became policy.

The assent to coercive interrogation techniques, defined under international law as torture, constitutes a landmark turn in American legal and political history. It did not happen without sustained debate on the part of Americans responsible for directing the course of their nation, individuals at the Pentagon, in the State Department, and in the Department of Justice. The memos do not overlook basic ethical and legal questions. From the start, the Administration is concerned about the legality of harsh interrogation techniques and the importance of establishing a legally viable argument for such procedures to be implemented. These memos argue, with increasing acknowledgment of the tenuous legal ground on which they stand, for the right to implement "Counter-Resistance Strategies." Most of the memos ask for approval without specifying the goal of such techniques. By October, 2002, the Commander of the U.S. Southern Command, James T. Hill, explains, "... despite our best efforts, some detainees have tenaciously resisted our current interrogation methods. Our respective staffs, the Office of the Secretary of Defense and Joint Task Force 170 have been trying to identify counter-resistant techniques that we can lawfully employ (Memo #16)." The result is the creation of three categories of torture and a final compendium of approved techniques taken from all three categories in light of the arguments outlined in the memos.

There are a number of moral and legal issues embedded in these documents. They include the matters of reciprocity, of human rights protocols, and of constitutionality. The concepts of rights and reciprocity are easy when it comes to the behavior of other nations, but it is in times of crisis and fear that such a principle is truly tested. In the wake of 9/11 and the stresses and strains of an undeclared war on Arab states and persons, the principle faltered at an early stage. The search for legal grounds for these strategies began with the argument that the Taliban and al Qaeda are not covered under the Geneva Conventions, the former on the grounds that Afghanistan was at the time a failed state, the latter because al Qaeda is a non-state actor. Therefore, the authors of these memos reasoned, the right of reciprocity for the United States would not be abrogated.

Despite raising numerous legal questions, there is much these memos overlook. Nowhere is the matter of precedent raised in terms of changes in the American treatment of prisoners; what kinds of across-the-board policies would the approval of such procedures launch? This lapse raises the further question, to what extent were these practices in place elsewhere within the American penal system, military or otherwise? Also missing is a discussion of the fact that these procedures were designed for use on detainees picked up in the Afghan theatre and yet they were applied, as the Reports included in this volume demonstrate, to alleged terrorists and to prisoners in Iraq. The justifications for this are hard to find. Also missing from these discussions is the matter of the effect of such procedures and policies upon those who implement them. As the American historian Arthur Schlesinger, Jr., recently suggested, "the abuse of captives brutalizes their captors." [1] Finally, there is but scant mention of such techniques. As Michael Dunlavey, an Army lawyer pointed out, while the techniques may work initially, over time, there is less proof of their efficacy. [2]

These concerns are but the beginning of the debate which must ultimately call into question not the Bush Administration but the American people. The use of coercive interrogation techniques was downplayed, not only by the military, but by the American press as well. The American public insisted in the early stages of the exposure of the memos and reports included in this volume that the practice could not possibly be systematic, reasoned, or intended. The general consensus was that Americans could not possibly be involved in such tactics. Which brings into focus yet another aspect of the decision to use torture; namely, what will be the spiritual cost, the overall damage to the character of the nation?

In the path to torture, there have been numerous individuals involved. They include: those who wrote the memos, those who ordered the torture, those who carried it out, and those in government and later in the public sector who refused to register the abuses as wrongdoing. Many have a distinctive history of academic accomplishment. John Yoo studied at Harvard (B.A.) and Yale (J.D.), taught at Stanford University, and now teaches at Boalt Hall at Berkeley. Alberto Gonzales attended Rice University and Harvard (J.D.). Donald Rumsfeld graduated from Princeton (A.B.). William J. Haynes II, earned his degrees from Davidson College (B.A.) and Harvard (J.D.). William H. Taft, IV, who advised against the policy of torture, attended Yale (B.A.) and Harvard (J.D.). Jack Goldsmith received his J.D. from Yale. Rumsfeld, Taft, Haynes, Timothy Flanigan and Jay S. Bybee worked in the administration of the first President Bush. Some of the main players in the torture narrative -- for example, Bybee and John Ashcroft -- have deeply religious beliefs. In addition to the authors and recipients of these memos, there remains the possibility that there is advice coming from numerous quarters that is not documented here. The confluence of prior associations, overlapping affiliations and other connections among the drafters of the torture memos remains for journalists and historians to discover over time.

Ultimately, what the reader is left with after reading these documents is a clear sense of the systematic decision to alter the use of methods of coercion and torture that lay outside of accepted and legal norms, a process that began early in 2002 and that was well defined by the end of that year, months before the invasion of Iraq. The considerations on torture included here relate exclusively therefore to Guantanamo. Not only did the lawyers and policy makers knowingly overstep legal doctrine, but they did so against the advice of individuals in their midst, notably Secretary of State Colin Powell and William H. Taft, Legal Advisor to the Secretary of State. Powell's memo, a virtual cry in the dark, warns that the policy will "undermine the protections of the law of war for our troops." [3] He warns also about the "negative international reaction" [4] that will follow and the possibility that the implementation of coercive interrogation practices will "undermine public support among critical allies, making military cooperation more difficult to sustain." [5] In regard to the war on terror, he foresees the possible deleterious effect upon anti-terrorist legal cooperation with Europe. Yet another voice of dissent comes many months later from Guantanamo Bay Staff Judge Advocate Diane E. Beaver, recommending "legal, medical, behavioral science and intelligence" [6] vetting of the recommended interrogation procedures.

The reports included in this volume show the use of these techniques in Abu Ghraib and against individuals picked up apparently outside of the Afghan theatre, leaving open the question of how and why these considerations were drafted for one context and utilized in the war on terror as well as in the war in Iraq. It remains for scholars and policy makers to explore the links between the initial policies that served Bagram Air Force Base and Guantanamo and the later polices in Afghanistan and against terror suspects picked up outside of the Afghan battlefield. It remains for lawyers and judges, military and civil, to recommend the remedies to address the legal license taken in accordance with these documents, remedies for lawyers, for government officials, for interrogators, and for agency policies as well. It remains for human rights activists, journalists, and others to discover the extent to which these procedures were utilized.

With the documents before us, it is possible now to begin these explorations and to consider the record both as symptom of its time and as precedent to the future. Fear is an irrefutable catalyst. More than the law, more than treaties, it must stand the judgment of good men and women who flinch less from fear than from the loss of respect for one another. The constructive value of these memos and reports is to enable open-minded reflection and self-correction even in times such as these.

_______________

Notes:

1. Arthur Schlesinger, Jr., "The Making of a Mess," The New York Review of Books, 42, September 23. 2004.

2. October 11, 2002, Memo from Maj. Gen. Michael E. Dunlavey to Commander, U.S. Southern Command.

3. January 26, 2001, Memo from Colin L. Powell to Counsel to the President and Assistant to the President for National Security Affairs.

4. Ibid.

5. Ibid.

6. October 11, 2002, Memo from Diane E. Beaver to Commander, JTF 170.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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The Legal Narrative
Joshua L. Dratel


While the proverbial road to hell is paved with good intentions, the internal government memos collected in this publication demonstrate that the path to the purgatory that is Guantanamo Bay, or Abu Ghraib, has been paved with decidedly bad intentions. The policies that resulted in rampant abuse of detainees first in Afghanistan, then at Guantanamo Bay, and later in Iraq, were the product of three pernicious purposes designed to facilitate the unilateral and unfettered detention, interrogation, abuse, judgment, and punishment of prisoners: (1) the desire to place the detainees beyond the reach of any court or law; (2) the desire to abrogate the Geneva Convention with respect to the treatment of persons seized in the context of armed hostilities; and (3) the desire to absolve those implementing the policies of any liability for war crimes under U.S. and international law.

Indeed, any claim of good faith -- that those who formulated the policies were merely misguided in their pursuit of security in the face of what is certainly a genuine terrorist threat -- is belied by the policy makers' more than tacit acknowledgment of their unlawful purpose. Otherwise, why the need to find a location -- Guantanamo Bay -- purportedly outside the jurisdiction of the U.S. (or any other) courts? Why the need to ensure those participating that they could proceed free of concern that they could face prosecution for war crimes as a result of their adherence to the policy? Rarely, if ever, has such a guilty governmental conscience been so starkly illuminated in advance.

That, of course, begs the question: what was it that these officials, lawyers, and lay persons feared from the federal courts? An independent judiciary? A legitimate, legislated, established system of justice designed to promote fairness and accuracy? The Uniform Code of Military Justice, which governs courts-martial and authorizes military commissions? The message that these memoranda convey in response is unmistakable: these policy makers do not like our system of justice, with its checks and balances, and rights and limits, that they have been sworn to uphold. That antipathy for and distrust of our civilian and military justice systems is positively un-American.

However, that distaste for our justice system was not symmetrical, as the memos reveal how the legal analysis was contrived to give the policy architects and those who implemented it the benefit of the doubt on issues of intent and criminal responsibility while at the same time eagerly denying such accommodations to those at whom the policies were directed. Such piecemeal application of rights and law is directly contrary to our principles: equal application of the law, equal justice for all, and a refusal to discriminate based on status, including nationality or religion. A government cannot pick and choose what rights to afford itself, and what lesser privileges it confers on its captives, and still make any valid claim to fairness and due process.

The memoranda that comprise this volume follow a logical sequence: (1) find a location secure not only from attack and infiltration, but also, and perhaps more importantly in light of the December 28, 2001, memo that commences this trail, from intervention by the courts; (2) rescind the U.S.'s agreement to abide by the proscriptions of the Geneva Convention with respect to the treatment of persons captured during armed conflict; and (3) provide an interpretation of the law that protects policy makers and their instruments in the field from potential war crimes prosecution for their acts. The result, as is clear from the arrogant rectitude emanating from the memos, was unchecked power, and the abuse that inevitably followed.

The chronology of the memoranda also demonstrates the increasing rationalization and strained analysis as the objectives grew more aggressive and the position more indefensible -- in effect, rationalizing progressively more serious conduct to defend the initial decisions and objectives, to the point where, by the time the first images of Abu Ghraib emerged in public, the government's slide into its moral morass, as reflected in the series of memos published in this volume, was akin to a criminal covering up a parking violation by incrementally more serious conduct culminating in murder.

The memos also reflect what might be termed the "corporatization" of government lawyering: a wholly result-oriented system in which policy makers start with an objective and work backward, in the process enlisting the aid of intelligent and well-credentialed lawyers who, for whatever reason -- the attractions of power, careerism, ideology, or just plain bad judgment -- all too willingly failed to act as a constitutional or moral compass that could brake their client's descent into unconscionable behavior constituting torture by any definition, legal or colloquial. That slavish dedication to a superior's imperatives does not serve the client well in the end and reduces the lawyer's function to that of a gold-plated rubber stamp.

Nor does any claim of a "new paradigm" provide any excuse, or even a viable explanation. The contention, set forth with great emphasis in these memoranda, that al Qaeda, as a fanatic, violent, and capable international organization, represented some unprecedented enemy justifying abandonment of our principles is simply not borne out by historical comparison. The Nazi party's dominance of the Third Reich is not distinguishable in practical terms from al Qaeda's influence on the Taliban government as described in these memos.

Al Qaeda's record of destruction, September 11th notwithstanding -- and as a New Yorker who lived, and still lives, in the shadow of the Twin Towers, which cast a long shadow over lower Manhattan even in their absence, I am fully cognizant of the impact of that day -- pales before the death machine assembled and operated by the Nazis. Yet we managed to eradicate Nazism as a significant threat without wholesale repudiation of the law of war, or a categorical departure from international norms, even though National Socialism, with its fascist cousins, was certainly a violent and dangerous international movement -- even with a vibrant chapter here in the United States.

Indeed, like the Nazis' punctilious legalization of their "final solution," the memos reproduced here reveal a carefully orchestrated legal rationale, but one without valid legal or moral foundation. The threshold premise here, that Guantanamo Bay is outside the jurisdiction of the U.S. courts, was soundly rejected by the Supreme Court last June in Rasul v. Bush, and the successive conclusions built upon that premise will, like the corrupted dominoes they are, tumble in due course. There they will join the other legally instituted but forever discredited stains upon U.S. legal history: the internment of Japanese during World War II, the treatment of Native Americans, and slavery.

Review of the memoranda reveals that not all the players were villains, though. There were dissenters from this march toward ignominy. The Department of State pointed out the perils -- to U.S. service personnel principally, who would likely be treated reciprocally if captured -- of not applying the standards of the Geneva Convention, and the contradictory position of the United States with respect to the status of the Taliban as the existing government of Afghanistan. Military officers also manifested an implicit reticence, and even incredulity, in demanding explicit authority and direction before implementing the full range of "counter-resistance" techniques. Yet, unfortunately, the policy makers to whom they appealed were only too willing to oblige, and to ignore the cautions communicated by the State Department.

It would be remiss of those of us who have compiled these memoranda and reports to leave them as the record without offering some solutions. The most important change would be the recognition by the Executive that unilateral policy fails not only because it ignores the checks and balances of the other branches, but also because it creates policies distorted by only a single, subjective point of view. Even failing that voluntary reform, Congress must exercise its authority, through oversight and legislation, just as the courts have invoked their power of judicial review.

Lawyers and public officials need to be instructed, in school and on the job, to be cognizant of the real-life consequences of their policy choices. Government is not some academic political science competition, in which the prize goes to the student who can muster coherent doctrinal support, however flimsy, for the most outlandish proposition. Here, real people suffered real, serious, and lasting harm due to violations of whatever law applies -- U.S., international, common, natural, moral, or religious -- committed by our government, in our name.

As citizens, we surely enjoy rights, but just as surely responsibilities as well. We cannot look the other way while we implicitly authorize our elected officials to do the dirty work, and then, like Capt. Renault in Casablanca, be "shocked" that transgressions have occurred under our nose. The panic-laden fear generated by the events of September 11th cannot serve as a license -- for our government in its policies, or for ourselves in our personal approach to grave problems -- to suspend our constitutional heritage, our core values as a nation, or the behavioral standards that mark a civilized and humane society. That type of consistency in the face of danger, in the face of the unknown, defines courage and presents a road map for a future of which we can be proud.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 7:03 pm

Timeline

September 14, 2001: President Bush issues “Declaration of National Emergency by Reason of Certain Terrorist Attacks.”

September 25, 2001: John Yoo, Deputy Assistant Attorney General, U.S. Department of Justice advises Timothy E. Flanigan, Deputy Council to the President, that the President has “broad constitutional power” in the matter of military force, military preemption and retaliatory measures against terrorists (persons, organization or States) and those who harbor them.

October 7, 2001: [1] President Bush announces that on his orders, “the United States military has begun strikes against al Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan.” [2]

November 13, 2001: George W. Bush, “Military Order of November 13, 2001,” “Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism,” authorizes the detention of alleged terrorists and subsequent trial by military commissions that, given the threat of terrorism, should not be subject to the same principles of law and rules of evidence recognized in US criminal courts.

December 28, 2001: Deputy Assistant Attorney General John C. Yoo and Deputy Assistant Attorney General Patrick F. Philbin advise William J. Haynes II, General Counsel, U.S. Department of Defense, that Federal Courts in the United States lack jurisdiction to hear habeus corpus petitions of prisoners held in Guantanamo Bay, Cuba. This opinion becomes the basis of the government’s legal strategy of trying to prevent detainees from challenging their detention in U.S. courts.

January 9, 2002: Justice Department lawyer John C. Yoo, a U.C. Berkeley law professor, and Special Counsel Robert J. Delahunty advise William J. Haynes II, General Counsel, U.S. Department of Defense, that the Geneva Conventions do not protect members of the al Qaeda network or the Taliban militia.

January 16, 2002: The first suspected al Qaeda and Taliban prisoners arrive at Guantanamo Bay, Cuba.

January 19, 2002: Secretary of Defense Donald Rumsfeld informs the Chairman of the Joint Chiefs of Staff, Richard B. Myers, that al Qaeda and Taliban members are “not entitled to prisoners of war status” under the Geneva Conventions but should be treated “to the extent appropriate” in a manner consistent with the Geneva Conventions of 1949.

January 22, 2002: Then–Assistant Attorney General Jay S. Bybee writes to White House Counsel Alberto R. Gonzales and Department of Defense General Counsel William J. Haynes II, arguing that the Geneva Conventions do not apply to “non-state actors” and are not entitled to prisoner of war status.

January 25, 2002: White House Counsel Alberto R. Gonzales, in a memo to President Bush, considers Secretary of State Colin Powell’s objections “unpersuasive” on the grounds that determining that members of al Qaeda and the Taliban are not prisoners of war “holds open options for the future conflicts in which it may be more difficult to determine whether an enemy force as a whole meets the standard for POW status.” This memo also refers to the President’s decision that the Geneva Conventions, in the Treatment of the Prisoners of War, “do not apply with respect to the conflict with the Taliban,” and “that al Qaeda and Taliban detainees are not prisoners of war” under the Geneva Conventions.

January 26, 2002: Secretary of State Colin Powell asks for reconsideration of the Administration’s stance on al Qaeda and Taliban members as not entitled to POW status on the grounds that this determination should only be made on a case-by-case basis. He argues that this should be done in order not to jeopardize the United States in matters of reciprocity, international cooperation and legal vulnerability.

January 27, 2002: Defense Secretary Donald Rumsfeld visits Guantanamo Bay and says the prisoners there “will not be determined to be POWs.” [3]

February 1, 2002: Attorney General John Ashcroft, in a memo to President Bush, argues that the Geneva Conventions do not apply to members of al Qaeda or the Taliban.

February 2, 2002: In a memo to White House Counsel Alberto Gonzales, State Department Legal Advisor William H. Taft IV argues that the Geneva Conventions do apply to the war in Afghanistan.

February 7, 2002: President Bush signs an order declaring, “I accept the legal conclusion of the Attorney General and the Department of Justice that I have the authority under the Constitution to suspend Geneva (Conventions) as between the United States and Afghanistan, but I decline to exercise that authority at this time.” He then says that he is reserving the right to do so “in this or future conflicts.”

February 7, 2002: In a memo to White House Counsel Alberto Gonzales, Assistant Attorney General in the Department of Justice’s Office of Legal Counsel Jay S. Bybee writes that the Taliban do not deserve protection under Article 4 of the Third Geneva Convention because they do not meet legal conditions to be considered legal combatants.

February 26, 2002: DOJ Assistant Attorney General Jay S. Bybee concludes in a memo to General Counsel in the Department of Defense William J. Haynes III that information de- rived from military interrogations is admissible in Article III Courts, even without Miranda warnings. His memo raises the question of the relationship between coercive interrogation and Miranda rights.

August 1, 2002: Jay S. Bybee states in a memo to Alberto R. Gonzales that the text of the Torture Convention “prohibits only the most extreme acts by reserving criminal penalties solely for torture and declining to require such penalties for ‘cruel, inhuman, or degrading treatment or punishment.’ ”

October 11, 2002: A series of memos are issued, considering acceptable counter-resistance techniques. These memos include:

A memo from Commander Maj. Gen. Michael E. Dunlavey considering the “counter-resistance strategies.” Dunlavey acknowledges the intelligence that has resulted, but expresses doubt about the effectiveness of such techniques over time.

Cover letter from DOD Guantanamo Bay Staff Judge Advocate Diane E. Beaver, in which she recommends “that interrogators be properly trained in the use of the ap- proved methods of interrogation,” and that there be a legal review of interrogation techniques in Categories II and III. Her memo evaluates the interrogation techniques in Categories I, II, and III in terms of domestic and international law pertaining to interrogation and torture and recommends a more in-depth “legal, medical, behavioral science and intelligence review” of Categories II and III.

Director of JTF 170 Guantanamo Bay Jerald Phifer’s memo, which outlines Category I, II, and III techniques for counter- resistance strategies.

October 25, 2002: U.S. Southern Command Commander General James T. Hill sends a memo to Chairman of the Joint Chiefs of Staff Richard B. Myers, commenting upon the October 11 memos defining counter-resistance techniques and their legality. Hill is “uncertain whether all the techniques in the third category are legal under U.S. law, given the absence of judicial interpretation of the U.S. torture statute.”

November 27, 2002: Department of Defense General Counsel William J. Haynes advises Secretary of Defense Donald Rumsfeld to apply only Category I and II techniques and “mild, non-injurious physical conduct” techniques from Category III during interrogations.

December 2, 2002: Secretary of Defense Rumsfeld approves the techniques outlined in William J. Haynes’ November 27 memo.

January 15, 2003: In a memo to U.S. Southern Commander James T. Hill, Secretary of Defense Rumsfeld rescinds permission to use previously approved Category II and III techniques during Guantanamo interrogation and approves use of these techniques only on a case-by-case basis and with the approval of the Secretary of Defense. Rumsfeld also convenes a working group to assess legal policy and operational issues relating to detainees.

January 17, 2003: Memo from William J. Haynes designates Mary L. Walker, the General Counsel for the Department of the Air Force, to chair the Working Group assessing legal policy and operational issues relating to interrogation.

March 6, 2003: Working Group Report recommends taking the Geneva Conventions into account but determines that Taliban detainees do not qualify as prisoners of war and the Geneva Conventions do not apply to the other prisoners at Guantanamo, as they are non-state actors. The United States is, however, bound to the Torture Convention of 1994 (as long as it is in accord with U.S. constitutional Amendments 5, 8 and 14) which includes in the definition of torture the requirement of specific intent “to inflict severe mental pain or suffering” and in cases of mental pain, the damage must be prolonged. The report includes debate over 8th Amendment precedents on torture as well as standard defenses to criminal conduct.

March 14, 2003: Memorandum for William J. Haynes II, General Counsel of the Department of Defense, from John C. Yoo, declassified March 31, 2008.

March 19, 2003: President Bush announces that on his orders, “coalition forces have begun striking selected targets of military importance” in Iraq. [4]

April 4, 2003: The updated version of the March 6, 2003, Working Group Report argues that it may be necessary to interrogate detainees “in a manner beyond that which may be applied to a prisoner of war who is subject to the Geneva Conventions.” In greater detail than the March 6 report, this report discusses the affirmative defenses for the use of torture and the legal technicalities that can be used to create a “good faith defense against pros- ecution.” Includes a chart that lists the utility of various interrogation techniques, along with a system displaying their consistency with both U.S. domestic law and international norms.

April 16, 2003: In a memo to U.S. Southern Command Commander General James T. Hill, Secretary of State Rumsfeld provides a new list of approved interrogation techniques that include most Category I techniques and a limited number of Category II techniques. Some of the techniques listed require the specific approval of the Secretary of Defense, on the grounds that they may be perceived as in violation of the Geneva Conventions on prisoners of war.

March 19, 2004: Assistant Attorney General in the Office of Legal Counsel, Jack Goldsmith, justifies the forcible removal of persons who have not been accused of an offense from Iraq “for a brief but not indefinite period” for the purposes of interrogation. Goldsmith argues that Article 49 of the Fourth Geneva Convention prohibition on deportations does not apply to aliens in occupied territory and does not “forbid the removal from occupied territory ...of ‘protected persons’ who are illegal aliens.”

_______________

Notes:

1. Italicized dates refer to events of note that took place, not to memos.

2. Presidential Address to the Nation, October 7, 2001. <www.whitehouse.gov/news/releases/2001/10/20011007.8>

3. "Rumsfeld Visits Camp X-Ray," CNN.com/Transcripts, January 27, 2002. <www.cnn.com/TRANSCRIPTS/0201/27/sun.09.html>

4. Presidential Address to the Nation, March 19, 2003. <www.whitehouse.gov/news/releases/2003/03/20030319-17>
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 7:03 pm

Missing Documents

These documents have not yet been declassified and/or are currently not obtainable.

1. Memorandum for Alberto R. Gonzales, Counsel to the President, from Patrick F. Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Legality of the Use of Military Commissions to Try Terrorists (November 6, 2001). [1]

2. Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the Untied States (October 17, 2001). [2]

3. Information Paper, Subject: Background Information on Taliban Forces (February 6, 2002), by Rear Admiral L.E. Jacoby, U.S. Navy, J-2. [3]

4. Memorandum for William J. Haynes II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations (March 13, 2002). [4]

_______________

Notes:

1. This document is referred to in footnote 3 (p. 3) of the January 9, 2002, memo from John C. Yoo and Robert J. Delahunty.

2. This document is referred to in footnote 104 (p. 29) of the January 22, 2002, memo from Jay S. Bybee. This document is ascribed a different date, October 23, 2001, in a subsequent document (the February 26, 2002, memo from Jay S. Bybee, at footnote 16, p. 21).

3. This document is referred to in the text (at p. 2) of the February 7, 2002, memo from Jay S. Bybee. It is relevant because it was cited in that memo as a basis for concluding that the Taliban, as a whole, was not entitled to Prisoner of War status under the provisions of Geneva Convention III.

4. This document is referred to at p. 38 of the August 1. 2002, memo from Jay S. Bybee.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 7:05 pm

Biographical Sketches

Ashcroft, John

Attorney General, U.S. Department of Justice
Ashcroft became U.S. Attorney General in January 2001. Prior to that, he served as Attorney General of Missouri for two terms and as Governor of Missouri from 1985 through 1993. He was elected to the U.S. Senate in 1994 and represented the state of Missouri there until the end of 2000.

Bybee, Jay S.
Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice
Bybee was appointed to the position of Assistant Attorney General by President George W. Bush in 2001. He joined the Department of Justice in 1984, where he worked in the Office of Legal Policy and the Appellate Staff of the Civil Division. From 1989 to 1991, he served in the White House as Associate Counsel to the President. From 1991 until his appointment in 2001, he taught law at Louisiana State University and the University of Nevada, Las Vegas.

Church Albert T. III, (Vice Admiral)
Director of the Navy Staff
Prior to serving as Director of the Navy Staff, Vice Admiral Church had two Director-level positions in the Navy. From July 1998 until March 2003, he served as both Director, Office of Budget in the Office of the Assistant Secretary of the Navy and Director, Fiscal Management Division, in the Office of the Chief of Naval Operations.

Delahunty, Robert J.
Associate Professor of Law, University of St. Thomas, Former Deputy General Counsel, White House Office of Homeland Security
Delahunty served as the Deputy General Counsel at the White House Office of Homeland Security from 2002 to 2003. He joined the U.S. Department of Justice in 1986, where he began working for the Office of Legal Counsel in 1989. He spent much of his legal career in the Office of Legal Counsel and in 1992, he was appointed Special Counsel in that department.

Dunlavey, Michael E. (Major General)
Former Operational Commander, Guantanamo Bay, Cuba
A career military man, Major General Dunlavey was made Commander of Terror Suspect Operations at Guantanamo Bay, Cuba, in 1997. Prior to that position, he served as Assistant Deputy Chief of Staff for Intelligence in the Office of the Deputy Chief of Staff for Intelligence.

Fay, George R. (Brigadier General)
Commanding General, U.S. Army Intelligence and Security Command (INSCOM)
A career military man, Brigadier General Fay became the INSCOM Acting Commander in July 2003. Prior to this position, he served as the Deputy Commanding General of INSCOM, a position he assumed in October 1999.

Flanigan, Timothy
Former Deputy White House Counsel
Flanigan is currently serving as the General Counsel for Corporate and International Law at Tyco, International. Prior to this, he was Deputy White House Counsel and a Deputy Assistant to President George W. Bush. Mr. Flanigan was a partner in the law firm White & Case and had previously served as Assistant Attorney General for the Department of Justice’s Office of the Legal Counsel during the administration of the first President Bush. In 1985 and 1986, he served as a law clerk to Chief Justice Warren Burger of the United States Supreme Court.

Goldsmith, Jack Landman III
Former Assistant Attorney General, Office of Legal Counsel
Goldsmith is currently a Professor of Law at Harvard Law School. Until recently, he was an Assistant Attorney General in the Justice Department’s Office of Legal Counsel for the Bush Administration. Previously, he taught law at the University of Chicago and the University of Virginia. He has written numerous books and articles in the field of international and foreign relations law.

Gonzales, Alberto R.
Assistant to the President and White House Counsel
Gonzales was appointed as Counsel to President George W. Bush in January 2001. Prior to his position in the White House, Gonzales served as a Justice of the Supreme Court of Texas, a position he was appointed to in 1999. He also served as Texas’ Secretary of State from December 1997 to January 1999 and was the General Counsel to Governor Bush for three years prior to becoming Secretary of State.

Haynes William J. II
General Counsel, U.S. Department of Defense
Haynes was appointed to the position of General Counsel of the Department of Defense by President George Bush in May 2001. He serves as the chief legal officer of the Department of Defense and the legal advisor to the Secretary of Defense. In 1990, the President appointed him General Counsel of the Department of the Army, a position he held until 1993, when he joined the law firm Jenner & Block.

Hill, James T. (General)
Commander, U.S. Southern Command
General Hill was appointed the Commander of the U.S. Southern Command in October 2002. Since being commissioned by the infantry after his college graduation in 1968, Gen- eral Hill has had numerous Commanding Military assignments. He also earned many medals and awards throughout his military career.

Jones, Anthony R. (Lieutenant General)
Deputy Commanding General/Chief of Staff U.S. Army Training and Doctrine Command, Fort Monroe, VA
A career military man, Lieutenant General Jones became the Deputy Commanding General and Chief of Staff for Headquarters, U.S. Army Training and Doctrine Command, in June 2003.

Mikolashek, Paul T. (Lieutenant General)
Commanding General, Third U.S. Army
A career military man, Lieutenant General Mikolashek became the Commanding General of the Third U.S. Army and U.S. Army Forces Central Command in June 2000. Prior to this position, he served as Commanding General for U.S. Army Southern European Task Force, a position he assumed in September 1998.

Philbin, Patrick F.
Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice Philbin was appointed to the position of Deputy Assistant Attorney General in September 2001. Prior to joining the Justice Department, he was a partner in the Washington office of the law firm Kirkland & Ellis.

Powell, Colin L.
Secretary of State, U.S. Department of State
Powell was nominated to the position of Secretary of State by President Bush in Decem- ber 2000 and was sworn in as Secretary in January 2001. Prior to becoming Secretary of State, Powell was the chairman of America’s Promise – The Alliance for Youth. Prior to this position, he served as a professional soldier for 35 years. He was the Chairman of the Joint Chiefs of Staff in the Department of Defense from October 1989 to September 1993 and Assistant to the President for National Security Affairs from December 1987 to January 1989.

Rumsfeld, Donald F.
Secretary of Defense, U.S. Department of Defense
Rumsfeld was sworn in as Secretary of Defense for the second time in January 2001. He previously held this position from 1975 to1977, serving under President Ford. In addition, Rumsfeld served as White House Chief of Staff from 1974 to 1975, U.S. Ambassador to NATO from 1973 to 1974, and U.S. Congressman from 1962 to 1969. From 1977 to 2000, he worked in the private sector, during which time he was chief executive officer of two Fortune 500 companies.

Sanchez, Richardo S. (Lieutenant General)
Former Commander of Joint Task Force 7
A career military man, Lt. Gen. Sanchez was the commander of Combined Joint Task Force 7 and the senior military official in Iraq until July 2004. In July 2001, Lt. Gen. Sanchez became commanding general of V Corps’ 1st Armored Division. He held that position for nearly two years before assuming command of the V Corps on June 14, 2003.

Schlesinger, James R.
Former U.S. Secretary of Defense
Schlesinger served as Secretary of Defense from 1973 to 1975. He currently is a Consultant to the U.S. Department of Defense, as well as a Commissioner on the U.S. Commission on National Security/21st Century/Hart-Rudman Commission and a member of the Homeland Security Advisory Council. Schlesinger’s prior positions include Secretary of Energy (1977– 79), Assistant to the President (1977), Director of the C.I.A. (1973), and Director of Strategic Studies (1967–69), and Senior Staff Member (1963–67), at the RAND Corporation.

Taft William H. IV
Legal Advisor, Office of the Legal Advisor, U.S. Department of State
Taft was appointed as the Legal Advisor to the Secretary of State in April 2001. Prior to this position, Taft was a litigation partner in the law firm Fried Franks, which he joined in 1992. From 1989 to 1992, he served as the U.S. Permanent Representative to NATO. He was the Deputy Secretary of Defense from January 1984 to April 1989 and Acting Secretary of Defense from January to March 1989. He also served as General Counsel for the Department of Defense from 1981 to 1984.

Taguba, Antonio M. (Major General)
U.S. Army Commander
A career military man, Major General Taguba is currently Deputy Assistant Secretary of Defense for readiness, training, and mobilization in the office of the Assistant Secretary of Defense for Reserve Affairs. Taguba was reassigned to this position, after serving as Deputy Commanding General, Third U.S. Army, U.S. Army Forces Central Command, and Coalition Forces Land Component Command. He previously was the Acting Director of the Army Staff, Headquarters, Department of the Army, The Pentagon.

Yoo, John C.
Professor of Law, Boalt Hall School of Law, University of California, Berkeley/Former
Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice Yoo served as Deputy Assistant Attorney General from 2001 to 2003. Prior to this position, he served as General Counsel of the U.S. Senate Judiciary Committee from 1995 to 1996. He has been a member of the Boalt faculty since 1993 and clerked for Justice Clarence Thomas on the U.S. Supreme Court.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 7:08 pm

PART 1 OF 2

MEMO 1

U.S. Department of Justice
Office of the Legal Counsel

September 25, 2001

MEMORANDUM OPINION FOR TIMOTHY FLANIGAN, THE DEPUTY COUNSEL TO THE PRESIDENT

FROM: John C. Yoo, Deputy Assistant Attorney General

THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM

The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.

The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.

The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.


--------------------------------------------------------------------------------

September 25, 2001

MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT

You have asked for our opinion as to the scope of the President's authority to take military action in response to the terrorist attacks on the United States on September 11, 2001. We conclude that the President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-1548 (the "WPR"), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

Our analysis falls into four parts. First, we examine the Constitution's text and structure. We conclude that the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign relations, to use military force abroad - especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States. Second, we confirm that conclusion by reviewing the executive and judicial statements and decisions interpreting the Constitution and the President's powers under it. Third, we analyze the relevant practice of the United States, including recent history, that supports the view that the President has the authority to deploy military force in response to emergency conditions such as those created by the September 11, 2001, terrorist attacks. Finally, we discuss congressional enactments that, in our view, acknowledge the President's plenary authority to use force to respond to the terrorist attack on the United States.

Our review establishes that all three branches of the Federal Government - Congress, the Executive, and the Judiciary - agree that the President has broad authority to use military force abroad, including the ability to deter future attacks.

I.

The President's constitutional power to defend the United States and the lives of its people must be understood in light of the Founders' express intention to create a federal government "cloathed with all the powers requisite to [the] complete execution of its trust." The Federalist No. 23, at 122 (Alexander Hamilton) (Charles R. Kesler ed., 1999). Foremost among the objectives committed to that trust by the Constitution is the security of the Nation. (1) As Hamilton explained in arguing for the Constitution's adoption, because "the circumstances which may affect the public safety are [not] reducible within certain determinate limits, . . . it must be admitted, as a necessary consequence that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficiency." Id. (2)

"It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981) (citation omitted). Within the limits that the Constitution itself imposes, the scope and distribution of the powers to protect national security must be construed to authorize the most efficacious defense of the Nation and its interests in accordance "with the realistic purposes of the entire instrument." Lichter v. United States, 334 U.S. 742, 782 (1948). Nor is the authority to protect national security limited to actions necessary for "victories in the field." Application of Yamashita, 327 U.S. 1, 12 (1946). The authority over national security "carries with it the inherent power to guard against the immediate renewal of the conflict." Id.

We now turn to the more precise question of the President's inherent constitutional powers to use military force.

Constitutional Text. The text, structure and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to use military force in situations of emergency. Article II, Section 2 states that the "President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." U.S. Const. art. II, § 2, cl. 1. He is further vested with all of "the executive Power" and the duty to execute the laws. U.S. Const. art. II, § 1. These powers give the President broad constitutional authority to use military force in response to threats to the national security and foreign policy of the United States. (3) During the period leading up to the Constitution's ratification, the power to initiate hostilities and to control the escalation of conflict had been long understood to rest in the hands of the executive branch. (4)

By their terms, these provisions vest full control of the military forces of the United States in the President. The power of the President is at its zenith under the Constitution when the President is directing military operations of the armed forces, because the power of Commander in Chief is assigned solely to the President. It has long been the view of this Office that the Commander-in-Chief Clause is a substantive grant of authority to the President and that the scope of the President's authority to commit the armed forces to combat is very broad. See, e.g., Memorandum for Honorable Charles W. Colson, Special Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The President and the War Power: South Vietnam and the Cambodian Sanctuaries (May 22, 1970) (the "Rehnquist Memo"). The President's complete discretion in exercising the Commander-in-Chief power has also been recognized by the courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court explained that, whether the President "in fulfilling his duties as Commander in Chief" had met with a situation justifying treating the southern States as belligerents and instituting a blockade, was a question "to be decided by him" and which the Court could not question, but must leave to "the political department of the Government to which this power was entrusted." (5)

Some commentators have read the constitutional text differently. They argue that the vesting of the power to declare war gives Congress the sole authority to decide whether to make war. (6) This view misreads the constitutional text and misunderstands the nature of a declaration of war. Declaring war is not tantamount to making war - indeed, the Constitutional Convention specifically amended the working draft of the Constitution that had given Congress the power to make war. An earlier draft of the Constitution had given to Congress the power to "make" war. When it took up this clause on August 17, 1787, the Convention voted to change the clause from "make" to "declare." 2 The Records of the Federal Convention of 1787, at 318-19 (Max Farrand ed., rev. ed. 1966) (1911). A supporter of the change argued that it would "leav[e] to the Executive the power to repel sudden attacks." Id. at 318. Further, other elements of the Constitution describe "engaging" in war, which demonstrates that the Framers understood making and engaging in war to be broader than simply "declaring" war. See U.S. Const. art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."). A State constitution at the time of the ratification included provisions that prohibited the governor from "making" war without legislative approval, S.C. Const. art. XXVI (1776), reprinted in 6 The Federal and State Constitutions 3247 (Francis Newton Thorpe ed., 1909). (7) If the Framers had wanted to require congressional consent before the initiation of military hostilities, they knew how to write such provisions.

Finally, the Framing generation well understood that declarations of war were obsolete. Not all forms of hostilities rose to the level of a declared war: during the seventeenth and eighteenth centuries, Great Britain and colonial America waged numerous conflicts against other states without an official declaration of war. (8) As Alexander Hamilton observed during the ratification, "the ceremony of a formal denunciation of war has of late fallen into disuse." The Federalist No. 25, at 133 (Alexander Hamilton). Instead of serving as an authorization to begin hostilities, a declaration of war was only necessary to "perfect" a conflict under international law. A declaration served to fully transform the international legal relationship between two states from one of peace to one of war. See 1 William Blackstone, Commentaries *249-50. Given this context, it is clear that Congress's power to declare war does not constrain the President's independent and plenary constitutional authority over the use of military force.

Constitutional Structure. Our reading of the text is reinforced by analysis of the constitutional structure. First, it is clear that the Constitution secures all federal executive power in the President to ensure a unity in purpose and energy in action. "Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number." The Federalist No. 70, at 392 (Alexander Hamilton). The centralization of authority in the President alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch. As Hamilton noted, "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks." Id. at 391. This is no less true in war. "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." Id. No. 74, at 415 (Alexander Hamilton). (9)

Second, the Constitution makes clear that the process used for conducting military hostilities is different from other government decisionmaking. In the area of domestic legislation, the Constitution creates a detailed, finely wrought procedure in which Congress plays the central role. In foreign affairs, however, the Constitution does not establish a mandatory, detailed, Congress-driven procedure for taking action. Rather, the Constitution vests the two branches with different powers - the President as Commander in Chief, Congress with control over funding and declaring war - without requiring that they follow a specific process in making war. By establishing this framework, the Framers expected that the process for warmaking would be far more flexible, and capable of quicker, more decisive action, than the legislative process. Thus, the President may use his Commander-in-Chief and executive powers to use military force to protect the Nation, subject to congressional appropriations and control over domestic legislation.

Third, the constitutional structure requires that any ambiguities in the allocation of a power that is executive in nature - such as the power to conduct military hostilities - must be resolved in favor of the executive branch. Article II, section 1 provides that "[t]he executive Power shall be vested in a President of the United States." U.S. Const. art. II, § 1. By contrast, Article I's Vesting Clause gives Congress only the powers "herein granted." Id. art. I, § 1. This difference in language indicates that Congress's legislative powers are limited to the list enumerated in Article I, section 8, while the President's powers include inherent executive powers that are unenumerated in the Constitution. To be sure, Article II lists specifically enumerated powers in addition to the Vesting Clause, and some have argued that this limits the "executive Power" granted in the Vesting Clause to the powers on that list. But the purpose of the enumeration of executive powers in Article II was not to define and cabin the grant in the Vesting Clause. Rather, the Framers unbundled some plenary powers that had traditionally been regarded as "executive," assigning elements of those powers to Congress in Article I, while expressly reserving other elements as enumerated executive powers in Article II. So, for example, the King's traditional power to declare war was given to Congress under Article I, while the Commander-in-Chief authority was expressly reserved to the President in Article II. Further, the Framers altered other plenary powers of the King, such as treaties and appointments, assigning the Senate a share in them in Article II itself. (10) Thus, the enumeration in Article II marks the points at which several traditional executive powers were diluted or reallocated. Any other, unenumerated executive powers, however, were conveyed to the President by the Vesting Clause.

There can be little doubt that the decision to deploy military force is "executive" in nature, and was traditionally so regarded. It calls for action and energy in execution, rather than the deliberate formulation of rules to govern the conduct of private individuals. Moreover, the Framers understood it to be an attribute of the executive. "The direction of war implies the direction of the common strength," wrote Alexander Hamilton, "and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority." The Federalist No. 74, at 415 (Alexander Hamilton). As a result, to the extent that the constitutional text does not explicitly allocate the power to initiate military hostilities to a particular branch, the Vesting Clause provides that it remain among the President's unenumerated powers.

Fourth, depriving the President of the power to decide when to use military force would disrupt the basic constitutional framework of foreign relations. From the very beginnings of the Republic, the vesting of the executive, Commander-in-Chief, and treaty powers in the executive branch has been understood to grant the President plenary control over the conduct of foreign relations. As Secretary of State Thomas Jefferson observed during the first Washington Administration: "the constitution has divided the powers of government into three branches [and] has declared that the executive powers shall be vested in the president, submitting only special articles of it to a negative by the senate." Due to this structure, Jefferson continued, "the transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the senate. Exceptions are to be construed strictly." Thomas Jefferson, Opinion on the Powers of the Senate (1790), reprinted in 5 The Writings of Thomas Jefferson, at 161 (Paul L. Ford ed., 1895). In defending President Washington's authority to issue the Neutrality Proclamation, Alexander Hamilton came to the same interpretation of the President's foreign affairs powers. According to Hamilton, Article II "ought . . . to be considered as intended . . . to specify and regulate the principal articles implied in the definition of Executive Power; leaving the rest to flow from the general grant of that power." Alexander Hamilton, Pacificus No. 1 (1793), reprinted in 15 The Papers of Alexander Hamilton, at 33, 39 (Harold C. Syrett et al. eds., 1969). As future Chief Justice John Marshall famously declared a few years later, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. . . . The [executive] department . . . is entrusted with the whole foreign intercourse of the nation . . . ." 10 Annals of Cong. 613-14 (1800). Given the agreement of Jefferson, Hamilton, and Marshall, it has not been difficult for the executive branch consistently to assert the President's plenary authority in foreign affairs ever since.

In the relatively few occasions where it has addressed foreign affairs, the Supreme Court has agreed with the executive branch's consistent interpretation. Conducting foreign affairs and protecting the national security are, as the Supreme Court has observed, "'central' Presidential domains." Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982). The President's constitutional primacy flows from both his unique position in the constitutional structure, and from the specific grants of authority in Article II that make the President both the Chief Executive of the Nation and the Commander in Chief. See Nixon v. Fitzgerald, 457 U.S. 731, 749-50 (1982). Due to the President's constitutionally superior position, the Supreme Court has consistently "recognized 'the generally accepted view that foreign policy [is] the province and responsibility of the Executive.'" Department of the Navy v. Egan, 484 U.S. 518, 529 (1988) (quoting Haig v. Agee, 453 U.S. at 293-94). "The Founders in their wisdom made [the President] not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs," possessing "vast powers in relation to the outside world." Ludecke v. Watkins, 335 U.S. 160, 173 (1948). This foreign affairs power is exclusive: it is "the very delicate, plenary and exclusive power of the President as sole organ of the federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).

Conducting military hostilities is a central tool for the exercise of the President's plenary control over the conduct of foreign policy. There can be no doubt that the use of force protects the Nation's security and helps it achieve its foreign policy goals. Construing the Constitution to grant such power to another branch could prevent the President from exercising his core constitutional responsibilities in foreign affairs. Even in the cases in which the Supreme Court has limited executive authority, it has also emphasized that we should not construe legislative prerogatives to prevent the executive branch "from accomplishing its constitutionally assigned functions." Nixon v. Administrator of General Servs., 433 U.S. 425, 443 (1977).

II.
Executive Branch Construction and Practice. The position we take here has long represented the view of the executive branch and of the Department of Justice. Attorney General (later Justice) Robert Jackson formulated the classic statement of the executive branch's understanding of the President's military powers in 1941:

Article II, section 2, of the Constitution provides that the President "shall be Commander in Chief of the Army and Navy of the United States." By virtue of this constitutional office he has supreme command over the land and naval forces of the country and may order them to perform such military duties as, in his opinion, are necessary or appropriate for the defense of the United States. These powers exist in time of peace as well as in time of war.

. . . .

Thus the President's responsibility as Commander in Chief embraces the authority to command and direct the armed forces in their immediate movements and operations designed to protect the security and effectuate the defense of the United States. . . . [T]his authority undoubtedly includes the power to dispose of troops and equipment in such manner and on such duties as best to promote the safety of the country.


Training of British Flying Students in the United States, 40 Op. Att'y Gen. 58, 61-62 (1941).(11) Other Attorneys General have defended similar accounts of the President constitutional powers and duties, particularly in times of unforeseen emergencies.

Attorney General William P. Barr, quoting the opinion of Attorney General Jackson just cited, advised the President in 1992 that "[y]ou have authority to commit troops overseas without specific prior Congressional approval 'on missions of good will or rescue, or for the purpose of protecting American lives or property or American interests.'" Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. at 6 (citation omitted).

Attorney General (later Justice) Frank Murphy, though declining to define precisely the scope of the President's independent authority to act in emergencies or states of war, stated that:

the Executive has powers not enumerated in the statutes - powers derived not from statutory grants but from the Constitution. It is universally recognized that the constitutional duties of the Executive carry with them the constitutional powers necessary for their proper performance. These constitutional powers have never been specifically defined, and in fact cannot be, since their extent and limitations are largely dependent upon conditions and circumstances. . . . The right to take specific action might not exist under one state of facts, while under another it might be the absolute duty of the Executive to take such action.


Request of the Senate for an Opinion as to the Powers of the President "In Emergency or State of War," 39 Op. Att'y Gen. 343, 347-48 (1939).

Attorney General Thomas Gregory opined in 1914 that "[i]n the preservation of the safety and integrity of the United States and the protection of its responsibilities and obligations as a sovereignty, [the President's] powers are broad." Censorship of Radio Stations, 30 Op. Att'y Gen. 291, 292 (1914).

Finally, in 1898, Acting Attorney General John K. Richards wrote:

The preservation of our territorial integrity and the protection of our foreign interests is intrusted, in the first instance, to the President. . . . In the protection of these fundamental rights, which are based upon the Constitution and grow out of the jurisdiction of this nation over its own territory and its international rights and obligations as a distinct sovereignty, the President is not limited to the enforcement of specific acts of Congress. [The President] must preserve, protect, and defend those fundamental rights which flow from the Constitution itself and belong to the sovereignty it created.


Foreign Cables, 22 Op. Att'y Gen. 13, 25-26 (1898). Acting Attorney General Richards cited, among other judicial decisions, Cunningham v. Neagle, 135 U.S. 1, 64 (1890), in which the Supreme Court stated that the President's power to enforce the laws of the United States "include[s] the rights, duties and obligations growing out of the constitution itself, our international relations, and all the protection implied by the nature of the government under the constitution."

Opinions of the Office of Legal Counsel. Our Office has taken the position in recent Administrations, including those of Presidents Clinton, Bush, Reagan, Carter, and Nixon, that the President may unilaterally deploy military force in order to protect the national security and interests of the United States.

In 1995, we opined that the President "acting without specific statutory authorization, lawfully may introduce United States ground troops into Bosnia and Herzegovina . . . to help the North Atlantic Treaty Organization . . . ensure compliance with the recently negotiated peace agreement." Proposed Deployment of United States Armed Forces in Bosnia and Herzegovina, 19 Op. O.L.C. 327, 327 (1995) (the "Bosnia Opinion"). We interpreted the WPR to "lend[] support to the . . . conclusion that the President has authority, without specific statutory authorization, to introduce troops into hostilities in a substantial range of circumstances." Id. at 335.

In Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173 (1994), we advised that the President had the authority unilaterally to deploy some 20,000 troops into Haiti. We relied in part on the structure of the WPR, which we argued "makes sense only if the President may introduce troops into hostilities or potential hostilities without prior authorization by the Congress." Id. at 175-76. We further argued that "in establishing and funding a military force that is capable of being projected anywhere around the globe, Congress has given the President, as Commander in Chief, considerable discretion in deciding how that force is to be deployed." Id. at 177. We also cited and relied upon the past practice of the executive branch in undertaking unilateral military interventions:

In 1940, after the fall of Denmark to Germany, President Franklin Roosevelt ordered United States troops to occupy Greenland, a Danish possession in the North Atlantic of vital strategic interest to the United States. . . . Congress was not consulted or even directly informed. . . . Later, in 1941, the President ordered United States troops to occupy Iceland, an independent nation, pursuant to an agreement between himself and the Prime Minister of Iceland. The President relied upon his authority as Commander in Chief, and notified Congress only after the event. . . . More recently, in 1989, at the request of President Corazon Aquino, President Bush authorized military assistance to the Philippine government to suppress a coup attempt.


Id. at 178.

In Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. at 8, our Office advised that the President had the constitutional authority to deploy United States Armed Forces into Somalia in order to assist the United Nations in ensuring the safe delivery of relief to distressed areas of that country. We stated that "the President's role under our Constitution as Commander in Chief and Chief Executive vests him with the constitutional authority to order United States troops abroad to further national interests such as protecting the lives of Americans overseas." Id. at 8. Citing past practice (further discussed below), we pointed out that

[f]rom the instructions of President Jefferson's Administration to Commodore Richard Dale in 1801 to 'chastise' Algiers and Tripoli if they continued to attack American shipping, to the present, Presidents have taken military initiatives abroad on the basis of their constitutional authority. . . . Against the background of this repeated past practice under many Presidents, this Department and this Office have concluded that the President has the power to commit United States troops abroad for the purpose of protecting important national interests.


Id. at 9 (citations omitted).

In Overview of the War Powers Resolution, 8 Op. O.L.C. 271, 275 (1984), we noted that "[t]he President's authority to deploy armed forces has been exercised in a broad range of circumstances [in] our history."

In Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185, 187 (1980), we stated that

[o]ur history is replete with instances of presidential uses of military force abroad in the absence of prior congressional approval. This pattern of presidential initiative and congressional acquiescence may be said to reflect the implicit advantage held by the executive over the legislature under our constitutional scheme in situations calling for immediate action. Thus, constitutional practice over two centuries, supported by the nature of the functions exercised and by the few legal benchmarks that exist, evidences the existence of broad constitutional power.


In light of that understanding, we advised that the President had independent constitutional authority unilaterally to order "(1) deployment abroad at some risk of engagement - for example, the current presence of the fleet in the Persian Gulf region; (2) a military expedition to rescue the hostages or to retaliate against Iran if the hostages are harmed; (3) an attempt to repel an assault that threatens our vital interests in that region." Id. at 185-86. See also Presidential Powers Relating to the Situation in Iran, 4A Op. O.L.C. 115, 121 (1979) ("It is well established that the President has the constitutional power as Chief Executive and Commander-in-Chief to protect the lives and property of Americans abroad. This understanding is reflected in judicial decisions
. . . and recurring historic practice which goes back to the time of Jefferson.").

Finally, in the Rehnquist Memo at 8, we concluded that the President as Commander in Chief had the authority "to commit military forces of the United States to armed conflict . . . to protect the lives of American troops in the field."

Judicial Construction. Judicial decisions since the beginning of the Republic confirm the President's constitutional power and duty to repel military action against the United States through the use of force, and to take measures to deter the recurrence of an attack. As Justice Joseph Story said long ago, "[i]t may be fit and proper for the government, in the exercise of the high discretion confided to the executive, for great public purposes, to act on a sudden emergency, or to prevent an irreparable mischief, by summary measures, which are not found in the text of the laws." The Apollon, 22 U.S. (9 Wheat.) 362, 366-67 (1824). The Constitution entrusts the "power [to] the executive branch of the government to preserve order and insure the public safety in times of emergency, when other branches of the government are unable to function, or their functioning would itself threaten the public safety." Duncan v. Kahanamoku, 327 U.S. 304, 335 (1946) (Stone, C.J., concurring).

If the President is confronted with an unforeseen attack on the territory and people of the United States, or other immediate, dangerous threat to American interests and security, the courts have affirmed that it is his constitutional responsibility to respond to that threat with whatever means are necessary, including the use of military force abroad. See, e.g., Prize Cases, 67 U.S. at 635 ("If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force . . . without waiting for any special legislative authority."); Kahanamoku, 327 U.S. at 336 (Stone, C.J., concurring) ("Executive has broad discretion in determining when the public emergency is such as to give rise to the necessity" for emergency measures); United States v. Smith, 27 F. Cas. 1192, 1230 (C.C.D.N.Y. 1806) (No. 16,342) (Paterson, Circuit Justice) (regardless of statutory authorization, it is "the duty . . . of the executive magistrate . . . to repel an invading foe") (12); Mitchell v. Laird, 488 F.2d 611, 613 (D.C. Cir. 1973) ("there are some types of war which without Congressional approval, the President may begin to wage: for example, he may respond immediately without such approval to a belligerent attack") (13); see also Campbell v. Clinton, 203 F.3d 19, 27 (D.C. Cir.) (Silberman, J. concurring) ("[T]he President has independent authority to repel aggressive acts by third parties even without specific statutory authorization."), cert. denied, 531 U.S. 815 (2000);id. at 40 (Tatel, J., concurring) ("[T]he President, as Commander in Chief, possesses emergency authority to use military force to defend the nation from attack without obtaining prior congressional approval."); Story, supra note 9, § 1485 ("[t]he command and application of the public force . . . to maintain peace, and to resist foreign invasion" are executive powers).

III.

The historical practice of all three branches confirms the lessons of the constitutional text and structure. The normative role of historical practice in constitutional law, and especially with regard to separation of powers, is well settled. (14) Both the Supreme Court and the political branches have often recognized that governmental practice plays a highly significant role in establishing the contours of the constitutional separation of powers: "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on 'executive Power' vested in the President by § 1 of Art. II." Youngstown Sheet & Tube Co., 343 U.S. at 610-11 (Frankfurter, J., concurring). Indeed, as the Court has observed, the role of practice in fixing the meaning of the separation of powers is implicit in the Constitution itself: "'the Constitution . . . contemplates that practice will integrate the dispersed powers into a workable government.'" Mistretta v. United States, 488 U.S. 361, 381 (1989) (citation omitted). In addition, governmental practice enjoys significant weight in constitutional analysis for practical reasons, on "the basis of a wise and quieting rule that, in determining . . . the existence of a power, weight shall be given to the usage itself - even when the validity of the practice is the subject of investigation." United States v. Midwest Oil Co., 236 U.S. 459, 473 (1915).

The role of practice is heightened in dealing with issues affecting foreign affairs and national security, where "the Court has been particularly willing to rely on the practical statesmanship of the political branches when considering constitutional questions." Whether Uruguay Round Agreements Required Ratification as a Treaty, 18 Op. O.L.C. 232, 234 (1994). "The persistence of these controversies (which trace back to the eighteenth century), and the nearly complete absence of judicial decisions resolving them, underscore the necessity of relying on congressional precedent to interpret the relevant constitutional provisions." Id. at 236. Accordingly, we give considerable weight to the practice of the political branches in trying to determine the constitutional allocation of warmaking powers between them.

The historical record demonstrates that the power to initiate military hostilities, particularly in response to the threat of an armed attack, rests exclusively with the President. As the Supreme Court has observed, "[t]he United States frequently employs Armed Forces outside this country - over 200 times in our history - for the protection of American citizens or national security." United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990). On at least 125 such occasions, the President acted without prior express authorization from Congress. See Bosnia Opinion, 19 Op. O.L.C. at 331. Such deployments, based on the President's constitutional authority alone, have occurred since the Administration of George Washington. See David P. Currie, The Constitution in Congress: Substantive Issues in the First Congress, 1789-1791, 61 U. Chi. L. Rev. 775, 816 (1994) ("[B]oth Secretary [of War] Knox and [President] Washington himself seemed to think that this [Commander in Chief] authority extended to offensive operations taken in retaliation for Indian atrocities.") (quoted in Bosnia Opinion, 19 Op. O.L.C. at 331 n.4. Perhaps the most significant deployment without specific statutory authorization took place at the time of the Korean War, when President Truman, without prior authorization from Congress, deployed United States troops in a war that lasted for over three years and caused over 142,000 American casualties. See Bosnia Opinion, 19 Op. O.L.C. at 331-32 n.5.

Recent deployments ordered solely on the basis of the President's constitutional authority have also been extremely large, representing a substantial commitment of the Nation's military personnel, diplomatic prestige, and financial resources. On at least one occasion, such a unilateral deployment has constituted full-scale war. On March 24, 1999, without any prior statutory authorization and in the absence of an attack on the United States, President Clinton ordered hostilities to be initiated against the Republic of Yugoslavia. The President informed Congress that, in the initial wave of air strikes, "United States and NATO forces have targeted the [Yugoslavian] government's integrated air defense system, military and security police command and control elements, and military and security police facilities and infrastructure. . . . I have taken these actions pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive." Letter to Congressional leaders reporting on airstrikes against Serbian targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 1 Pub. Papers of William Jefferson Clinton 459, 459 (1999). Bombing attacks against targets in both Kosovo and Serbia ended on June 10, 1999, seventy-nine days after the war began. More than 30,000 United States military personnel participated in the operations; some 800 U.S. aircraft flew more than 20,000 sorties; more than 23,000 bombs and missiles were used. As part of the peace settlement, NATO deployed some 50,000 troops into Kosovo, 7,000 of them American. (15) In a News Briefing on June 10, 1999, Secretary of Defense William S. Cohen summarized the effects of the campaign by saying,

[t]hree months ago Yugoslavia was a heavily armed country with a significant air defense system. We reduced that defense system threat by destroying over 80 percent of Yugoslavia's modern aircraft fighters and strategic suface-to-air missiles. NATO destroyed a significant share of the infrastructure Yugoslavia used to support[] its military with, we reduced his capacity to make ammunition by two-thirds, and we eliminated all of its oil refining capacity and more than 40 percent of its military fuel supplies, Most important, we severely crippled the military forces in Kosovo by destroying more than 50 percent of the artillery and more than one-third of the armored vehicles. (16)


General Shelton of the Joint Chiefs of Staff reported that "about half of [Yugoslavia's] defense industry has either been damaged or destroyed. . . . [A]viation, 70 percent; armored vehicle production, 40 [percent]; petroleum refineries, 100 percent down; explosive production, about 50 percent; and 65 percent of his ammunition. . . . For the most part Belgrade is a city that's got about probably 70 percent without [electrical] power." (17) A report by General Ryan, Air Force Chief of Staff, on June 8, 1999, stated that

Serbia's air force is essentially useless and its air defenses are dangerous but ineffective. Military armament production is destroyed. Military supply areas are under siege. Oil refinement has ceased and petroleum storage is systematically being destroyed. Electricity is sporadic, at best. Major transportation routes are cut. NATO aircraft are attacking with impunity throughout the country. (18)
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PART 2 OF 2 (MEMO 1 CONT'D.)

Estimates near the time placed the number of Yugoslav military casualties at between five and ten thousand. (19) In recent decades, no President has unilaterally deployed so much force abroad.

Other recent unilateral deployments have also been significant in military, foreign policy, and financial terms. Several such deployments occurred in the Balkans in the mid-1990s. (20) In December 1995, President Clinton ordered the deployment of 20,000 United States troops to Bosnia to implement a peace settlement. In February 1994, sixty United States warplanes conducted airstrikes against Yugoslav targets. In 1993, United States warplanes were sent to enforce a no-fly zone over Bosnia; in the same year, the President despatched United States troops to Macedonia as part of a United Nations peacekeeping operation.

Major recent deployments have also taken place in Central America and in the Persian Gulf. In 1994, President Clinton ordered some 20,000 United States troops to be deployed into Haiti, again without prior statutory authorization from Congress, in reliance solely upon his Article II authority. See Deployment of United States Armed Forces into Haiti, supra. On August 8, 1990, in response to the Iraqi invasion of Kuwait and the consequent threat to Saudi Arabia, President Bush ordered the deployment of substantial forces into Saudi Arabia in Operation Desert Shield. The forces were equipped for combat and included two squadrons of F-15 aircraft and a brigade of the 82d Airborne Division; the deployment eventually grew to several hundred thousand. The President informed Congress that he had taken these actions "pursuant to my constitutional authority to conduct our foreign relations and as Commander in Chief." Letter to Congressional Leaders, 2 Pub. Papers of George Bush 1116 (1990). President Bush also deployed some 15,000 troops into Panama in December, 1990, for the purpose (among others) of protecting Americans living in Panama. See 2 Pub. Papers of George Bush 1722 (1989); see generally Abraham D. Sofaer, The Legality of the United States Action in Panama, 29 Colum. J. Transnat'l L. 281 (1991).

Further, when Congress has in fact authorized deployments of troops in hostilities, past Presidents have taken the position that such legislation, although welcome, was not constitutionally necessary. For example, in signing Pub. L. No. 102-01, 105 Stat. 3 (1991), authorizing the use of military force in Operation Desert Storm against Iraq, President Bush stated that "my request for congressional support did not, and my signing this resolution does not, constitute any change in the longstanding positions of the executive branch on either the President's constitutional authority to use the Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers Resolution." Statement on Signing the Resolution Authorizing the Use of Military Force Against Iraq, 1 Pub. Papers of George Bush 40 (1991). (21) Similarly, President John F. Kennedy stated on September 13, 1962, that congressional authorization for a naval blockade of Cuba was unnecessary, maintaining that "I have full authority now to take such action." Pub. Papers of John F. Kennedy 674 (1962). And in a Report to the American People on October 22, 1962, President Kennedy asserted that he had ordered the blockade "under the authority entrusted to me by the Constitution as endorsed by the resolution of the Congress." Id. at 807 (emphasis added). (22) Thus, there is abundant precedent, much of it from recent Administrations, for the deployment of military force abroad, including the waging of war, on the basis of the President's sole constitutional authority.

Several recent precedents stand out as particularly relevant to the situation at hand, where the conflict is with terrorists. The first and most relevant precedent is also the most recent: the military actions that President William J. Clinton ordered on August 20, 1998, against terrorist sites in Afghanistan and Sudan. The second is the strike on Iraqi Intelligence Headquarters that President Clinton ordered on June 26, 1993. The third is President Ronald Reagan's action on April 14, 1986, ordering United States armed forces to attack selected targets at Tripoli and Benghazi, Libya.

(A) On August 20, 1998, President Clinton ordered the Armed Forces to strike at terrorist-related facilities in Afghanistan and Sudan "because of the threat they present to our national security." Remarks in Martha's Vineyard, Massachusetts, on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 Pub. Papers of William J. Clinton 1460 (1998). The President stated that the purpose of the operation was "to strike at the network of radical groups affiliated with and funded by Usama bin Ladin, perhaps the preeminent organizer and financier of international terrorism in the world today." Address to the Nation on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 Pub. Papers of William J. Clinton 1460 (1998). The strike was ordered in retaliation for the bombings of United States Embassies in Kenya and Tanzania, in which bin Laden's organization and groups affiliated with it were believed to have played a key role and which had caused the deaths of some 12 Americans and nearly 300 Kenyans and Tanzanians, and in order to deter later terrorist attacks of a similar kind against United States nationals and others. In his remarks at Martha's Vineyard, President Clinton justified the operation as follows:

I ordered this action for four reasons: first, because we have convincing evidence these groups played the key role in the Embassy bombings in Kenya and Tanzania; second, because these groups have executed terrorist attacks against Americans in the past; third, because we have compelling information that they were planning additional terrorist attacks against our citizens and others with the inevitable collateral casualties we saw so tragically in Africa; and fourth, because they are seeking to acquire chemical weapons and other dangerous weapons.


Id. In his Address to the Nation on the same day, the President made clear that the strikes were aimed, not only at bin Laden's organization, but at other terrorist groups thought to be affiliated with it, and that the strikes were intended as retribution for other incidents caused by these groups, and not merely the then-recent bombings of the two United States embassies. Referring to the past acts of the interlinked terrorist groups, he stated:

Their mission is murder and their history is bloody. In recent years, they killed American, Belgian, and Pakistani peacekeepers in Somalia. They plotted to assassinate the President of Egypt and the Pope. They planned to bomb six United States 747's over the Pacific. They bombed the Egyptian Embassy in Pakistan. They gunned down German tourists in Egypt.


Id. at 1460-61. Furthermore, in explaining why military action was necessary, the President noted that "law enforcement and diplomatic tools" to combat terrorism had proved insufficient, and that "when our very national security is challenged . . . we must take extraordinary steps to protect the safety of our citizens." Id. at 1461. Finally, the President made plain that the action of the two targeted countries in harboring terrorists justified the use of military force on their territory: "The United States does not take this action lightly. Afghanistan and Sudan have been warned for years to stop harboring and supporting these terrorist groups. But countries that persistently host terrorists have no right to be safe havens." Id.

The terrorist incidents of September 11, 2001, were surely far graver a threat to the national security of the United States than the 1998 attacks on our embassies (however appalling those events were). The President's power to respond militarily to the later attacks must be correspondingly broader. Nonetheless, President Clinton's action in 1998 illustrates some of the breadth of the President's power to act in the present circumstances.

First, President Clinton justified the targeting of particular groups on the basis of what he characterized as "convincing" evidence of their involvement in the embassy attacks. While that is not a standard of proof appropriate for a criminal trial, it is entirely appropriate for military and political decisionmaking. Second, the President targeted not merely one particular group or leader, but a network of affiliated groups. Moreover, he ordered the action, not only because of particular attacks on United States embassies, but because of a pattern of terrorist activity, aimed at both Americans and non-Americans, that had unfolded over several years. Third, the President explained that the military action was designed to deter future terrorist incidents, not only to punish past ones. Fourth, the President specifically justified military action on the territory of two foreign states because their governments had "harbor[ed]" and "support[ed]" terrorist groups for years, despite warnings from the United States.

(B) On June 26, 1993, President Clinton ordered a Tomahawk cruise missile strike on Iraqi Intelligence Service (the "IIS") headquarters in Baghdad. The IIS had planned an unsuccessful attempt to assassinate former President Bush in Kuwait in April, 1993. Two United States Navy surface ships launched a total of 23 missiles against the IIS center.

In a Letter to Congressional Leaders on the Strike on Iraqi Intelligence Headquarters, 1 Pub. Papers of William J. Clinton 940 (1993), the President referred to the failed assassination attempt and stated that "[t]he evidence of the Government of Iraq's violence and terrorism demonstrates that Iraq poses a continuing threat to United States nationals." He based his authority to order a strike against the Iraqi government's intelligence command center on "my constitutional authority with respect to the conduct of foreign relations and as Commander in Chief," as well as on the Nation's inherent right of self-defense. Id.

President Clinton's order was designed in part to deter and prevent future terrorist attacks on the United States - and most particularly future assassination attempts on former President Bush. Although the assassination attempt had been frustrated by the arrest of sixteen suspects before any harm was done, "nothing prevented Iraq from directing a second - possibly successful - attempt on Bush's life. Thus, the possibility of another assassination plot was 'hanging threateningly over [Bush's] head' and was therefore imminent. By attacking the Iraqi Intelligence Service, the United States hoped to prevent and deter future attempts to kill Bush." (23)

(C) On April 14, 1986, President Ronald Reagan, acting on his independent authority, ordered United States armed forces to engage in military action against the government of Colonel Gadhafi of Libya. (24) Thirty-two American aircraft attacked selected targets at Tripoli and Benghazi, Libya. Libyan officials reported thirty-seven people killed and an undetermined number injured. More than sixty tons of ordnance were used during the attack.

For some time Libya had supported terrorist groups and organizations and indeed had itself ordered direct terrorist attacks on the United States.

Under Gaddafi, Libya has declared its support of 'national liberation movements' and has allegedly financed and trained numerous terrorist groups and organizations, including Palestinian radicals, Lebanese leftists, Columbia's M-19 guerrillas, the Irish Republican Army, anti-Turkish Armenians, the Sandinistas in Nicaragua, Muslim rebels in the Philippines, and left-wing extremists in Europe and Japan. (25)


It had harbored a variety of terrorists, including Abu Nidal and the three surviving members of the Black September group that had killed eleven Israeli athletes at the 1972 Munich Olympic Games. (26) Libya's attacks on the United States included the murder of two United States diplomats in Khartoum (1973), the attempted assassination of Secretary of State Kissinger (1973), the burning of the United States Embassy in Tripoli (1979), the planned assassination of President Reagan, Secretary of State Haig, Secretary of Defense Weinberger, and Ambassador to Italy Robb (1981), and the hijacking of T.W.A. flight 847 (1985). (27) Libya had also been linked to terrorist events close to the time of the April, 1986, airstrike in which Americans and other had lost their lives. In January, 1986, American intelligence tied Libya to the December 27, 1985, bombings at the Rome and Vienna airports in which nineteen people, including 5 Americans, had died, and one hundred and twelve persons had been injured.

The particular event that triggered the President's military action had occurred on April 5, 1986, when a bomb exploded in the "Labelle," a Berlin discotheque frequented by U.S. military personnel. The blast killed three people (two Americans) and injured two hundred and thirty others (including seventy-nine Americans). Intelligence reports indicated that the bombing was planned and executed under the direct orders of the Government of Libya. The United States Ambassador to the United Nations stated that there was "direct, precise, and irrefutable evidence that Libya bears responsibility" for the bombing of the discotheque; that the "Labelle" incident was "only the latest in an ongoing pattern of attacks" by Libya against the United States and its allies; and that the United States had made "repeated and protracted efforts to deter Libya from its ongoing attacks," including "quiet diplomacy, public condemnation, economic sanctions, and demonstrations of military force." U.N. SCOR, 2674th mtg. at 16-17, U.N. Doc. S/PV.2674 (prov. ed. 1986).

Like the two unilateral Presidential actions discussed above, President Reagan's decision to use armed force in response to a terrorist attack on United States military personnel illustrates that the President has independent constitutional authority to use such force in the present circumstances.

IV.

Our analysis to this point has surveyed the views and practice of the executive and judicial branches. In two enactments, the War Powers Resolution and the recent Joint Resolution, Congress has also addressed the scope of the President's independent constitutional authority. We think these two statutes demonstrate Congress's acceptance of the President's unilateral war powers in an emergency situation like that created by the September 11 incidents.

Furthermore, the President can be said to be acting at the apogee of his powers if he deploys military force in the present situation, for he is operating both under his own Article II authority and with the legislative support of Congress. Under the analysis outlined by Justice Jackson in Youngstown Sheet & Tube Co., supra (and later followed and interpreted by the Court in Dames & Moore, supra), the President's power in this case would be "at its maximum," 343 U.S. at 635 (Jackson, J., concurring), because the President would be acting pursuant to an express congressional authorization. He would thus be clothed with "all [authority] that he possesses in his own right plus all that Congress can delegate," id., in addition to his own broad powers in foreign affairs under Article II of the Constitution.

The War Powers Resolution. Section 2(c) of the WPR, reads as follows:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.


50 U.S.C. § 1541(c) (emphasis added).

The executive branch consistently "has taken the position from the very beginning that section 2(c) of the WPR does not constitute a legally binding definition of Presidential authority to deploy our armed forces." Overview of the War Powers Resolution, 8 Op. O.L.C. at 274. (28) Moreover, as our Office has noted, "even the defenders of the WPR concede that this declaration [in section 2(c)] - found in the 'Purpose and Policy' section of the WPR - either is incomplete or is not meant to be binding." Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. at 176; accord Bosnia Opinion, 19 Op. O.L.C. at 335 ("The executive branch has traditionally taken the position that the President's power to deploy armed forces into situations of actual or indicated hostilities is not restricted to the three categories specifically marked out by the Resolution."); Presidential Powers Relating to the Situation in Iran, 4A Op. O.L.C. at 121 ("[T]he Resolution's policy statement is not a comprehensive or binding formulation of the President's powers as Commander-in-Chief."). Nonetheless, section 2(c)(3) correctly identifies one, but by no means the only, Presidential authority to deploy military forces into hostilities. (29) In the present circumstances, the statute signifies Congress's recognition that the President's constitutional authority alone would enable him to take military measures to combat the organizations or groups responsible for the September 11 incidents, together with any governments that may have harbored or supported them.

Further, Congress's support for the President's power suggests no limits on the Executive's judgment whether to use military force in response to the national emergency created by those incidents. Section 2(c)(3) leaves undisturbed the President's constitutional authority to determine both when a "national emergency" arising out of an "attack against the United States" exists, and what types and levels of force are necessary or appropriate to respond to that emergency. Because the statute itself supplies no definition of these terms, their interpretation must depend on longstanding constitutional practices and understandings. As we have shown in Parts I-III of this memorandum, constitutional text, structure and practice demonstrate that the President is vested with the plenary power to use military force, especially in the case of a direct attack on the United States. Section 2(c)(3) recognizes the President's broad authority and discretion in this area.

Given the President's constitutional powers to respond to national emergencies caused by attacks on the United States, and given also that section 2(c)(3) of the WPR does not attempt to define those powers, we think that that provision must be construed simply as a recognition of, and support for, the President's pre-existing constitutional authority. Moreover, as we read the WPR, action taken by the President pursuant to the constitutional authority recognized in section 2(c)(3) cannot be subject to the substantive requirements of the WPR, particularly the interrelated reporting requirements in section 4 and the "cut off" provisions of section 5, 50 U.S.C. §§ 1543-1544. (30) Insofar as the Constitution vests the power in the President to take military action in the emergency circumstances described by section 2(c)(3), we do not think it can be restricted by Congress through, e.g., a requirement that the President either obtain congressional authorization for the action within a specific time frame, or else discontinue the action. Were this not so, the President could find himself unable to respond to an emergency that outlasted a statutory cut-off, merely because Congress had failed, for whatever reason, to enact authorizing legislation within that period.

To be sure, some interpreters of the WPR take a broader view of its scope. But on any reasonable interpretation of that statute, it must reflect an explicit understanding, shared by both the Executive and Congress, that the President may take some military actions - including involvement in hostilities - in response to emergencies caused by attacks on the United States. Thus, while there might be room for disagreement about the scope and duration of the President's emergency powers, there can be no reasonable doubt as to their existence.

The Joint Resolution of September 14, 2001. Whatever view one may take of the meaning of section 2(c)(3) of the WPR, we think it clear that Congress, in enacting the "Joint Resolution [t]o authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States," Pub. L. No. 107-40, 115 Stat. 224 (2001), has confirmed that the President has broad constitutional authority to respond, by military means or otherwise, to the incidents of September 11.

First, the findings in the Joint Resolution include an express statement that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." Id. This authority is in addition to the President's authority to respond to past acts of terrorism. In including this statement, Congress has provided its explicit agreement with the executive branch's consistent position, as articulated in Parts I-III of this memorandum, that the President has the plenary power to use force even before an attack upon the United States actually occurs, against targets and using methods of his own choosing.

Second, Congress also found that there is a "threat to the national security and foreign policy of the United States posed by the[] grave acts of violence" on September 11, and that "such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy" of this country. Insofar as "the President's independent power to act depends upon the gravity of the situation confronting the nation," Youngstown Sheet & Tube Co., 343 U.S. at 662 (Clark, J., concurring in judgment), these findings would support any presidential determination that the September 11 attacks justified the use of military force in response. Further, they would buttress any Presidential determination that the nation is in a state of emergency caused by those attacks. The Constitution confides in the President the authority, independent of any statute, to determine when a "national emergency" caused by an attack on the United States exists. (31) Nonetheless, congressional concurrence is welcome in making clear that the branches agree on seriousness of the terrorist threat currently facing the Nation and on the justifiability of a military response.

Third, it should be noted here that the Joint Resolution is somewhat narrower than the President's constitutional authority. The Joint Resolution's authorization to use force is limited only to those individuals, groups, or states that planned, authorized, committed, or aided the attacks, and those nations that harbored them. It does not, therefore, reach other terrorist individuals, groups, or states, which cannot be determined to have links to the September 11 attacks. Nonetheless, the President's broad constitutional power to use military force to defend the Nation, recognized by the Joint Resolution itself, would allow the President to take whatever actions he deems appropriate to pre-empt or respond to terrorist threats from new quarters.

Conclusion

In light of the text, plan, and history of the Constitution, its interpretation by both past Administrations and the courts, the longstanding practice of the executive branch, and the express affirmation of the President's constitutional authorities by Congress, we think it beyond question that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001. Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon: the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas. (32) In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can 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. These decisions, under our Constitution, are for the President alone to make.

JOHN C. YOO
Deputy Assistant Attorney General
Office of Legal Counsel

--------------------------------------------------------------------------------

Notes:

1. "As Lincoln aptly said, '[is] it possible to lose the nation and yet preserve the Constitution?'" Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 662 (1952) (Clark, J., concurring in judgment).

2. See also The Federalist No. 34, at 175 (Alexander Hamilton) (Federal government is to possess "an indefinite power of providing for emergencies as they might arise"); id. No. 41, at 224 (James Madison) ("Security against foreign danger is one of the primitive objects of civil society. . . . The powers requisite for attaining it must be effectually confided to the foederal councils."). Many Supreme Court opinions echo Hamilton's argument that the Constitution presupposes the indefinite and unpredictable nature of the "the circumstances which may affect the public safety," and that the federal government's powers are correspondingly broad. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 662 (1981) (noting that the President "exercis[es] the executive authority in a world that presents each day some new challenge with which he must deal"); Hamilton v. Regents, 293 U.S. 245, 264 (1934) (federal government's war powers are "well-nigh limitless" in extent); Stewart v. Kahn, 78 U.S. (11Wall.) 493, 506 (1870) ("The measures to be taken in carrying on war . . . are not defined [in the Constitution]. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution."); Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1870) ("The Constitution confers upon Congress expressly power to declare war, grant letters of marque and reprisal, and make rules respecting captures on land and water. Upon the exercise of these powers no restrictions are imposed. Of course the power to declare war involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted.").

3. See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (President has authority to deploy United States armed forces "abroad or to any particular region"); Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850) ("As commander-in-chief, [the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual"); Loving v. United States, 517 U.S. 748, 776 (1996) (Scalia, J., concurring in part and concurring in judgment) (The "inherent powers" of the Commander in Chief "are clearly extensive."); Maul v. United States, 274 U.S. 501, 515-16 (1927) (Brandeis & Holmes, JJ., concurring) (President "may direct any revenue cutter to cruise in any waters in order to perform any duty of the service"); Massachusetts v. Laird, 451 F.2d 26, 32 (1st Cir. 1971) (the President has "power as Commander-in-Chief to station forces abroad"); Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6 (1992).

4. See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 196-241 (1996).

5. See id. ("He must determine what degree of force the crisis demands."); see also Eisentrager, 339 U.S. at 789 ("Certainly it is not the function of the Judiciary to entertain private litigation - even by a citizen - which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region."); Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948) ("The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret."); Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1561 (D.C. Cir. 1984) (Scalia, J., dissenting), vacated by 471 U.S. 1113 (1985); Ex parte Vallandigham, 28 F.Cas. 874, 922 (C.C.S.D. Ohio 1863) (No. 16,816) (in acting "under this power where there is no express legislative declaration, the president is guided solely by his own judgment and discretion"); Hefleblower v. United States, 21 Ct. Cl. 228, 238 (Ct. Cl. 1886) ("The responsibility of declaring what portions of the country were in insurrection and of declaring when the insurrection came to an end was accorded to the President; when he declared a portion of the country to be in insurrection the judiciary cannot try the issue and find the territory national; conversely, when the President declared the insurrection at an end in any portion of the country, the judiciary cannot try the issue and find the territory hostile."); cf. United States v. Chemical Found., Inc., 272 U.S. 1, 12 (1926) ("It was peculiarly within the province of the Commander-in-Chief to know the facts and to determine what disposition should be made of enemy properties in order effectively to carry on the war.")

6. See, e.g., Louis Fisher, Presidential War Power 185-206 (1995); John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath 3-5 (1993); Michael J. Glennon, Constitutional Diplomacy 80-84 (1990); Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs 109 (1990); Harold Hongju Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair 158-61 (1990); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law (2d ed. 1989).

Other scholars, however, have argued that the President has the constitutional authority to initiate military hostilities without prior congressional authorization. See, e.g., Edward S. Corwin, The President: Office and Powers 1787-1984 (5th ed. 1984); Philip Bobbitt, War Powers: An Essay on John Hart Ely's "War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath," 92 Mich. L. Rev. 1364 (1994); Robert H. Bork, Erosion of the President's Power in Foreign Affairs, 68 Wash. U. L. Q. 693 (1990); Henry P. Monaghan, Presidential War-Making, 50 B.U.L. Rev. 19 (1970); W. Michael Reisman, Some Lessons from Iraq: International Law and Democratic Politics, 16 Yale J. Int'l L. 203 (1991); Eugene V. Rostow, "Once More unto the Breach:" The War Powers Resolution Revisited, 21 Val. U.L. Rev. 1 (1986); John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U. Pa. L. Rev. 1673 (2000); Yoo, supra n.4.

7. A subsequent version made clear "that the governor and commander-in-chief shall have no power to commence war, or conclude peace, or enter into any final treaty" without legislative approval. S.C. Const. art. XXXIII (1778), reprinted in 6 The Federal and State Constitutions 3255 (Francis Newton Thorpe ed., 1909).

8. Of the eight major wars fought by Great Britain prior to the ratification of the Constitution, war was declared only once before the start of hostilities. See Yoo, supra note 4, at 214-15. See also W. Taylor Reveley, III, War Powers of the President and Congress: Who Holds the Arrows and Olive Branch? 55 (1981) ("[U]ndeclared war was the norm in eighteenth-century European practice, a reality brought home to Americans when Britain's Seven Years' War with France began on this continent." ); William Michael Treanor, Fame, The Founding, and The Power to Declare War, 82 Cornell L. Rev. 695, 709 (1997).

9. James Iredell (later an Associate Justice of the Supreme Court) argued in the North Carolina Ratifying Convention that "[f]rom the nature of the thing, the command of armies ought to be delegated to one person only. The secrecy, despatch, and decision, which are necessary in military operations, can only be expected from one person." Debate in the North Carolina Ratifying Convention, in 4 Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, at 107 (2d ed. 1987). See also 3 Joseph Story, Commentaries on the Constitution of the United States § 1485 (1833) (in military matters, "[u]nity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when single magistrate is entrusted exclusively with the power").

10. Thus, Article II's enumeration of the Treaty and Appointments Clauses only dilutes the unitary nature of the executive branch in regard to the exercise of those powers, rather than transforming them into quasi-legislative functions. See Constitutionality of Proposed Conditions to Senate Consent to the Interim Convention on Conservation of North Pacific Fur Seals, 10 Op. O.L.C. 12, 17 (1986) ("Nothing in the text of the Constitution or the deliberations of the Framers suggests that the Senate's advice and consent role in the treaty-making process was intended to alter the fundamental constitutional balance between legislative authority and executive authority.").

11. At the time Attorney General Jackson delivered his opinion, the United States was a neutral, and thus his conclusions about the President's powers did not rest on any special considerations that might apply in time of war. Although he stated that he was "inclined to the opinion" that a statute (the Lend-Lease Act) authorized the decision under review, Jackson expressly based his conclusion on the President's constitutional authority. Id. at 61.

12. Justice Paterson went on to remark that in those circumstances "it would I apprehend, be not only lawful for the president to resist such invasion, but also to carry hostilities into the enemy's own country." Id. at 1230.

13. The court further observed that "in a grave emergency [the President] may, without Congressional approval, take the initiative to wage war. . . . In such unusual situations necessity confers the requisite authority upon the President. Any other construction of the Constitution would make it self-destructive." Id. at 613-14. Accord Massachusetts v. Laird, 451 F.2d at 31 ("[t]he executive may without Congressional participation repel attack").

14. As the Supreme Court has noted, "the decisions of the Court in th[e] area [of foreign affairs] have been rare, episodic, and afford little precedential value for subsequent cases." Dames & Moore, 453 U.S. at 661. In particular, the difficulty the courts experience in addressing "the broad range of vitally important day-to-day questions regularly decided by Congress or the Executive" with respect to foreign affairs and national security makes the judiciary "acutely aware of the necessity to rest [judicial] decision[s] on the narrowest possible ground capable of deciding the case." Id. at 660-61. Historical practice and the ongoing tradition of executive branch constitutional interpretation therefore play an especially important role in this area.

15. See Campbell v. Clinton, 203 F.3d at 40 (Tatel, J., concurring) (quoting testimony of Secretary of Defense Cohen that "'[w]e're certainly engaged in hostilities [in Yugoslavia], we're engaged in combat'"); Exec. Order No. 13119, 64 Fed. Reg. 18,797 (Apr. 16, 1999) (designating March 24, 1999, as "the date of the commencement of combatant activities" in Yugoslavia); John C. Yoo, US Wars, US War Powers, 1 Chi. J. Int'l L. 355 (2000).

16. News Briefing, Office of the Assistant Secretary of Defense (Public Affairs), June 10, 1999, available at http://www.defenselink.mil/news/Jun1999 ... 10asd.html (remarks of Sec. Cohen).

17. Id. (remarks of Gen. Shelton).

18. General Michael E. Ryan, It may take time, but it's inevitable, Air Force News (released June 8, 1999).

19. See Nick Cook, War of Extremes, in Jane's Defence Weekly (July 7, 1999), available at http://www.janes.com/defense/news/kosov ... 1__n.shtml.

20. See Yoo, supra n.15, at 359.

21. Further, in a press conference on January 9, 1991, President Bush was asked if he believed that he needed congressional authorization in order to begin offensive operations against Iraq. He answered, "I don't think I need it. I think Secretary Cheney expressed it very well the other day. There are different opinions on either side of this question, but Saddam Hussein should be under no question on this: I feel that I have the authority to fully implement the United Nations resolutions." The President's News Conference on the Persian Gulf Crisis, 1 Pub. Papers of George Bush 17, 20 (1991).

22. An unsigned, unaddressed opinion in this Office's files, entitled Blockade of Cuba (Oct. 19, 1962), states that "the President, in the exercise of his constitutional power as Commander-in-Chief, can order a blockade without prior Congressional sanction and without a declaration of war by Congress." Id. at 9. Thus, the writers of the memorandum (presumably, either this Office or the State Department Legal Adviser's Office) determined that no Congressional authorization either existed or was necessary for the blockade ordered by President Kennedy.

23. Robert F. Teplitz, Taking Assassination Attempts Seriously: Did the United States Violate International Law in Forcefully Responding to the Iraqi Plot to Kill George Bush?, 28 Cornell Int'l L. J. 569, 609 (1995) (citation omitted).

24. See generally Wallace F. Warriner, U.S.M.C., The Unilateral Use of Coercion Under International Law: A Legal Analysis of the United States Raid on Libya on April 14, 1986, 37 Naval L. Rev. 49 (1988); Teplitz, supra n.23, at 583-86.

25. Teplitz, supra n.23, at 617 n.112.

26. See id.

27. See id. at n.113.

28. Thus, the State Department took the view, in a letter of November 30, 1974, that section 2(c) was a "declaratory statement of policy." Further, in 1975, the Legal Adviser to the State Department listed six (non-exclusive) situations, not enumerated in section 2(c), in which the President had independent constitutional authority to deploy troops without either a declaration of war or specific statutory authorization. See id. at 274-75.

29. We note that section 2(c) cannot itself qualify as a statutory authorization to act in national emergencies. It is rather a congressional acknowledgment of the President's nonstatutory, Article II-based powers. Section 8(d)(2) of the WPR, 50 U.S.C. § 1547, specifically provides that nothing in the WPR "shall be construed as granting any authority to the President . . . which authority he would not have had in the absence of this [joint resolution]."

30. True, the reporting requirement in section 4(a)(1) purports to apply to any case in which U.S. armed forces are introduced into hostilities "[i]n the absence of a declaration of war." 50 U.S.C. § 1543(a)(1). Further, the "cut off" provisions of section 5 are triggered by the report required by section 4(a)(1). Thus, the language of the WPR indicates an intent to reach action taken by the President pursuant to the authority recognized in section 2(c)(3), if no declaration of war has been issued. We think, however, that it would be beyond Congress's power to regulate the President's emergency authority in the manner prescribed by sections 4(a)(1) and 5.

31. See Prize Cases, 67 U.S. at 670 (whether a state of belligerency justifying a blockade exists is to be decided by the President); see also Sterling v. Constantin, 287 U.S. 378, 399 (1932) ("By virtue of his duty to 'cause the laws to be faithfully executed', the Executive is appropriately vested with the discretion to determine whether an exigency requiring military aid for that purpose has arisen."); Moyer v. Peabody, 212 U.S. 78, 83 (1909) ("[T]he governor's declaration that a state of insurrection existed is conclusive of that fact."); Campbell, 203 F.3d at 26-27 (Silberman, J., concurring) (The Court in the Prize Cases "made clear that it would not dispute the President on measures necessary to repel foreign aggression"); cf. Martin v. Mott, 25 U.S. (12 Wheat.) 19, 30 (1827) (President had unreviewable discretion to determine when "emergency" existed under statute enabling him to call up militia).

32. We of course understand that terrorist organizations and their state sponsors operate by secrecy and concealment, and that it is correspondingly difficult to establish, by the standards of criminal law or even lower legal standards, that particular individuals or groups have been or may be implicated in attacks on the United States. Moreover, even when evidence sufficient to establish involvement is available to the President, it may be impossible for him to disclose that evidence without compromising classified methods and sources, and so damaging the security of the United States. See, e.g., Chicago & Southern Air Lines, Inc, 333 U.S. at 111 ("The President . . . has available intelligence services whose reports are not and ought not to be published to the world."); see also Ruth Wedgwood, Responding to Terrorism: The Strikes Against Bin Laden, 24 Yale J. Int'l L. 559, 568-74 (1999) (analyzing difficulties of establishing and publicizing evidence of causation of terrorist incidents). But we do not think that the difficulty or impossibility of establishing proof to a criminal law standard (or of making evidence public) bars the President from taking such military measures as, in his best judgment, he thinks necessary or appropriate to defend the United States from terrorist attacks. In the exercise of his plenary power to use military force, the President's decisions are for him alone and are unreviewable.
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