Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka
Posted: Fri Oct 11, 2013 7:17 pm
PART 1 OF 3
MEMO __
U.S. Department of Justice
Office of Legal Counsel
Office of the Assistant Attorney General
Washington, D.C. 20530
October 23, 2001
MEMORANDUM FOR ALBERTO R. GONZALES
COUNSEL TO THE PRESIDENT
WILLIAM J. HAYNES, II
GENERAL COUNSEL
DEPARTMENT OF DEFENSE
FROM: John C. Yoo
Deputy Assistant Attorney General
Robert J. Delahunty
Special Counsel
RE: Authority for Use of Military Force to Combat Terrorist Activities Within the United States
You have asked for our Office's views on the authority for the use of military force to prevent or deter terrorist activity inside the United States. Specifically, you have asked whether the Posse Comitatus Act, 18 U.S.C. § 1385 (1994), limits the ability of the President to engage the military domestically, and what constitutional standards apply to its use. We conclude that the President has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States. We further believe that the use of such military force generally is consistent with constitutional standards, and that it need not follow the exact procedures that govern law enforcement operations.
Our analysis falls into five parts. First, we review the President's constitutional powers to respond to terrorist threats in the wake of the September 11, 2001 attacks on the World Trade Center and the Pentagon. We consider the constitutional text, structure and history, and interpretation by the executive branch, the courts and Congress. These authorities demonstrate that the President has ample authority to deploy military force against terrorist threats within the United States.
Second, we assess the legal consequences of S.J. Res. 23, Pub. L. No. 107-40, 115 Stat. 224 (2001), which authorized the President to use force to respond to the incidents of September 11. Enactment of this legislation recognizes that the President may deploy military force domestically and to prevent and deter similar terrorist attacks.
Third, we examine the Posse Comitatus Act, 18 U.S.C. § 1385, and show that it only applies to the domestic use of the Armed Forces for law enforcement purposes, rather than for the performance of military functions. The Posse Comitatus Act itself contains an exception that allows the use of the military when constitutionally or statutorily authorized, which has occurred in the present circumstances.
Fourth, we turn to the question whether the Fourth Amendment would apply to the use of the military domestically against foreign terrorists. Although the situation is novel (at least in the nation's recent experience), we think that the better view is that the Fourth Amendment would not apply in these circumstances. Thus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant.
Fifth, we examine the consequences of assuming that the Fourth Amendment applies to domestic military operations against terrorists. Even if such were the case, we believe that the courts would not generally require a warrant, at least when the action was authorized by the President or other high executive branch official. The Government's compelling interest in protecting the nation from attack and in prosecuting the war effort would outweigh the relevant privacy interests, making the search or seizure reasonable.
I.
The situation in which these issues arise is unprecedented in recent American history. Four coordinated terrorist attacks took place in rapid succession on the morning of September 11, 2001, aimed at critical Government buildings in the nation's capital and landmark buildings in its financial center. The attacks caused more than five thousand deaths, and thousands more were injured. Air traffic and telecommunications within the United States have been disrupted; national stock exchanges were shut for several days; damage from the attack has been estimated to run into the tens of billions of dollars. Hundreds of suspects and possible witnesses have been taken into custody, and more are being sought for questioning. In his Address to a Joint Session of Congress and to the American People on September 20, 2001, President Bush said that "[o]n September the 11th, enemies of freedom committed an act of war against our country." President's Address to a Joint Session of Congress (Sept. 20, 2001), available at http://wwrw.whitehouse.gov/news/release ... 920-8.html.
It is vital to grasp that attacks on this scale and with these consequences are "more akin to war than terrorism." [1] These events reach a different scale of destructiveness than earlier terrorist episodes, such as the destruction of the Murrah Building in Oklahoma City, Oklahoma in 1994. Further, it appears that the September 11 attacks are part of a violent terrorist campaign against the United States by groups affiliated with Al-Qaeda, an organization created in 1988 by Usama bin Laden. Al-Qaeda and its affiliates are believed to be responsible for a series of attacks upon the United States and its citizens that include a suicide bombing attack in Yemen on the U.S.S. Cole in 2000; the bombings of the United States Embassies in Kenya and in Tanzania in 1998; a truck bomb attack on a U.S. military housing complex in Saudi Arabia in 1996; an unsuccessful attempt to destroy the World Trade Center in 1993; and the ambush of U.S. servicemen in Somalia in 1993 by militia believed to have been trained by Al-Queda. [2] A pattern of terrorist activity of this scale, duration, extent, and intensity, directed primarily against the United States Government, its military and diplomatic personnel and its citizens, can readily be described as a "war " [3]
On the other hand, there are at least two important ways in which these attacks differ from past "wars" in which the United States has been involved. First, this conflict may take place, in part, on the soil of the United States. Except for the Revolutionary War, the War of 1812, and the Civil War, the United States has been fortunate that the theatres of military operations have been located primarily abroad. This allowed for a clear distinction between the war front, where the actions of military commanders were bound only by the laws of war and martial law, and the home front, where civil law and the normal application of constitutional law applied. September 11's attacks demonstrate, however, that in this current conflict the war front and the home front cannot be so clearly distinguished -- the terrorist attacks were launched from within the United States against civilian targets within the United States.
Second, the belligerent parties in a war are traditionally nation-states, see The Prize Cases, 67 U.S. (2 Black) 635, 666 (1862), or at least groups or organizations claiming independent nationhood and exercising effective sovereignty over a territory, id.; see also Coleman v. Tennessee, 97 U.S. 509, 517 (1878). [4] Here, Al-Qaeda is not a nation (although they have been harbored by foreign governments and may have received support and training from them). Like terrorists generally, Al-Qaeda's forces bear no distinctive uniform, do not carry arms openly, and do not represent the regular or even irregular military personnel of any nation. Rather, it is their apparent aim to intermingle with the ordinary civilian population in a manner that conceals their purposes and makes their activities hard to detect. Rules of engagement designed for the protection of non-combatant civilian populations, therefore, come under extreme pressure when an attempt is made to apply them in a conflict with terrorism.
This, then, is armed conflict between a nation-state and an elusive, clandestine group or network of groups striking unpredictably at civilian and military targets both inside and outside the United States. Because the scale of the violence involved in this conflict removes it from the sphere of operations designed to enforce the criminal laws, legal and constitutional rules regulating law enforcement activity are not applicable, or at least not mechanically so. As a result, the uses of force contemplated in this conflict are unlike those that have occurred in America's other recent wars. Such uses might include, for example, targeting and destroying a hijacked civil aircraft in circumstances indicating that hijackers intended to crash the aircraft into a populated area; deploying troops and military equipment to monitor and control the flow of traffic into a city; attacking civilian targets, such as apartment buildings, offices, or ships where suspected terrorists were thought to be; and employing electronic surveillance methods more powerful and sophisticated than those available to law enforcement agencies. These military operations, taken as they may be on United States soil, and involving as they might American citizens, raise novel and difficult questions of constitutional law.
II.
We believe that Article II of the Constitution, which vests the President with the power to respond to emergency threats to the national security, directly authorizes use of the Armed Forces in domestic operations against terrorists. Although the exercise of such authority usually has concerned the use of force abroad, there have been cases, from the 1794 Whiskey Rebellion on, [5] in which the President has deployed military force within the United States against armed forces operating domestically. During the Civil War and the War of 1812, federal troops fought enemy armies operating within the continental United States. On other occasions, the President has used military force within the United States against Indian tribes and bands. In yet other circumstances, the Armed Forces have been used to counter resistance to federal court orders, to protect the officials, agents, property or instrumentalities of the federal Government, or to ensure that federal governmental functions can be safely performed. [6] We believe that the text, structure, and history of the Constitution, in light of its executive, legislative, and judicial interpretation, clearly supports deployment of the military domestically, as well as abroad, to respond to attacks on the United States.
The Text, Structure and History of the Constitution. The text, structure and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to ensure the security of the United States in situations of compelling, unforeseen, and possibly recurring, threats to the nation's security.
Drawing on their experiences during the Revolutionary War and the Articles of Confederation, the Framers designed a Constitution that would vest the federal Government with sufficient authority to respond to any national emergency. In particular, the Framers were aware of the possibility of invasions or insurrections, and they understood that in some cases such emergencies could be met only by the use of federal military force. By definition, responding to these events would involve the use of force by the military within the continental United States. One of the signal defects of the Articles of Confederation was its failure to establish a federal Government that could respond to attacks from without or within. As James Madison observed before the start of the Federal Convention, the chief difficulty with the Articles was the "want of Guaranty to the States of their Constitutions & laws against internal violence." Vices of the Political System of the United States (Apr. 1787), in 9 The Papers of James Madison 345, 350 (Robert A. Rutland et al. eds., 1975). Similarly, Edmund Randolph argued before the Philadelphia Convention on May 29, 1787, that "the confederation produced no security agai[nst] foreign invasion; congress not being permitted to prevent a war nor to support it by th[eir] own authority." 1 Max Farrand, The Records of the Federal Convention of 1787, at 19 (1911) (alterations in original). [7]
As they understood it, the Constitution amply provided the federal Government with the authority to respond to such exigencies. "There are certain emergencies of nations in which expedients that in the ordinary state of things ought to be forborne become essential to the public weal. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them." The Federalist No. 36, at 191 (Alexander Hamilton). 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 efficacy." Id. No. 23, at 122 (Alexander Hamilton). As the nature and frequency of these emergencies could not be predicted, so too the Framers did not try to enumerate all of the powers necessary in response. Rather, they assumed that the national government would possess a broad authority to take action to meet any emergency. The federal Government is to possess "an indefinite power of providing for emergencies as they might arise." Id. No. 34, at 175 (Alexander Hamilton). Events leading up to the Federal Convention, such as Shay's Rebellion, clearly demonstrated the need for a central government that could use military force domestically. [8]
This power includes the authority to use force to protect the nation, whether at home or abroad. It "cannot be denied," Hamilton argued, that "there may happen cases in which the national government may be necessitated to resort to force." Id. No. 28, at 146 (Alexander Hamilton). "Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes exist in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body." Id. In this event, Hamilton observed, the federal Government must have power to use the military. "Should such emergencies at any time happen under the national government, there could be no remedy but force." Id.
To address these concerns, Article H vests in the President the Chief Executive and Commander in Chief Powers. The Framers' understanding of the meaning of "executive" power confirms that by vesting that power in the President, they granted him the broad powers necessary to the proper functioning of the government and to the security of the nation. Article II, Section 1 provides that "[t]he executive Power shall be vested in a President of the United States." By contrast, Article I's Vesting Clause gives Congress only the powers "herein granted." Id. art. I, § 1. This textual difference indicates that Congress's legislative powers are limited to the list enumerated in Article I, Section 8, while the President's powers include all federal executive powers unenumerated in the Constitution. To be sure, Article II specifically lists powers, such as the treaty and appointments powers, and some have argued that this limits the "executive Power" granted in the Vesting Clause to the powers on that list. These powers, however, are explicitly listed rather than subsumed within the Vesting Clause because parts of these once plenary executive powers have been either divided between Articles I and II (such as the war power), or have been altered by inclusion of the Senate (as with treaties and appointments). Article II's enumeration of the Treaty and Appointments Clauses, for example, only dilutes the unitary nature of the executive branch in regard to the exercise of those-powers, rather than transforms them into quasi-legislative functions.
Thus, an executive power, such as the power to use force in response to attacks upon the nation, not specifically detailed in Article II, Section 2, must remain with the President. This has been the general approach in regard to other powers not mentioned in the Constitution. See, e.g., Bowsher v. Synar, 478 U.S. 714 (1986) (removal power). In defending President Washington's authority to issue the Neutrality Proclamation, Alexander Hamilton came to the same interpretation of the President's powers. According to Hamilton, Article II "ought ... to be considered as intended by way of greater caution 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), in 15 The Papers of Alexander Hamilton, 33, 39 (Harold C. Syrett et al. eds., 1969). Hamilton further observed that "[t]he general doctrine then of our constitution is, that the Executive Power of the Nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument." Id.
These "exceptions" and "qualifications" are limited to those powers, in which the Framers unbundled certain plenary powers that had traditionally been regarded as "executive." Some elements of those powers were assigned to Congress in Article 1, while other elements were expressly retained as executive powers in the enumerations in Article II. So, for example, the King's traditional powers with respect to war and peace were disaggregated: the royal 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 11. [9] Further, the Framers altered other plenary powers of the King, such as treaties and appointments, by including the Senate in their exercise. [10] Any other, unenumerated executive powers, however, were conveyed to the President by the Vesting Clause.
Such unenumerated power includes the authority to use military force, whether at home or abroad, in response to a direct attack upon the United States. There can be little doubt that the decision to deploy military force is "executive" in nature, and was traditionally so regarded. At the time of the Framing, the commander in chief and executive powers were commonly understood to include the executive's sole authority to use the military to respond to attacks, invasions, or threats to a nation's security. [11] Using the military to defend the nation requires action and energy in execution, rather than the deliberate formulation of rules to govern private conduct. "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 to a particular branch the power to respond to critical threats to the nation's security and civil order, the Vesting Clause provides that it remains among the President's unenumerated executive powers.
The records of the Philadelphia Convention further demonstrate that the Framers intended to secure the President's authority to meet foreign attacks on or within the United States. On August 17, 1787, the Convention debated the proposal to grant Congress the power "To make war." James Madison and Elbridge Gerry "moved to insert 'declare,' striking out 'make' war; leaving to the Executive the power to repel sudden attacks." 2 Farrand, supra at 318 (final emphasis added). Although he opposed the Madison-Gerry motion, Richard Sherman nonetheless agreed that "[t]he Executive shd. be able to repel ... war." Id. The Madison-Gerry motion was initially adopted by the votes of 7 states to 2. Id. at 319. At the very least, therefore, the Framers understood the executive and commander in chief powers to give the President the full constitutional authority to respond to an attack. It was clearly understood that this authority included the power to use force domestically as well as abroad.
Early Constitutional Practice. Early judicial, congressional and executive practice also support our interpretation of the President's emergency powers. As Justice William Peterson, himself a prominent delegate to the Philadelphia Convention, wrote in United States v. Smith, 27 F. Cas. 1192, 1230 (C.C.D.N.Y. 1806) (No. 16,342), even absent statutory authorization, it would be "the duty . . . of the executive magistrate ... to repel an invading foe." Id. at 1230. "[l]t would," Justice Paterson remarked, "be not only lawful for the president to resist such invasion, but also to carry hostilities into the enemy's own country." Id. The First Congress -- in which many of the Framers sat -- also recognized this emergency Presidential authority. In response to President George Washington's request to regularize the status of the (then some 672) troops in the service of the United States, Congress ratified the previous military establishment in nearly all respects. Act of September 29, 1789, 1 Stat. 95. Washington had explained that he was seeking regular federal military forces in part so that he might defend the frontier from hostile Indians, but the statute remained silent on the purposes for which the troops might be deployed. James Madison seems to have understood this statutory silence to signify that once Congress had made troops available to the President, he could deploy them for defensive purposes as he judged best. "By the constitution, the President has the power of employing these troops for the protection of those parts (of the frontier] which he thinks require[] them most." I Annals of Cong. 724 (Joseph Gales ed., 1789) (statement of Rep. James Madison). The next year, Congress took further steps to put the federal army on a permanent basis. Act of April 30, 1790, 1 Stat. 119. Although this statute gave the President no express authority to protect the frontiers, it "plainly assumed that the President already had that power.. . [T]he inference is strong that Congress thought the requisite authority inherent in the office of Commander in Chief." David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801, at 83 (1997). The President's constitutional authority to deploy troops to protect the frontier was not thought to be confined to defensive operations: "[B]oth Secretary [of War] Knox and [President] Washington himself seemed to think this [Commander in Chief] authority extended to offensive operations undertaken in retaliation for Indian atrocities." Id. at 84. Thus, these early actions show that the Framers understood the Constitution to permit the President to deploy the military domestically to respond to threats to the national security.
Once Congress has provided the President with armed forces, he has the discretion to deploy them both defensively and offensively to protect the nation's security. The Constitution empowers Congress to raise an army and to provide a navy even in time of peace. U.S. Const. art. I, § 8, cis. 12-13. The Philadelphia Convention's proposal to grant this power was highly contentious. Pre-constitutional American political thought and practice had disfavored standing armies in time of peace. [12] The Declaration of Independence objected that the King "kept among us, in Times of Peace, Standing Armies, without the consent of our Legislatures." Id. para 13 (U.S. 1776). The Articles of Confederation restricted the powers of the States to maintain "vessels of war" and "any body of forces" in time of peace. Articles of Confederation, art. VI, cl. 4, reprinted in 4 Encyclopedia of the American Constitution app. 2, at 2093 (Leonard W. Levy ed., 1986). At the Philadelphia Convention, Elbridge Gerry argued that the proposed Constitution was defective because "there was <no> check here agst. standing armies in time of peace. The existing Cong. is so constructed that it cannot of itself maintain an army. This wd. not be the case under the new system. The people were jealous on this head, and great opposition to the plan would spring from such an omission." [13] Anti-Federalists vigorously opposed authorizing Congress to establish such forces not only because "the rulers may employ them for the purpose of promoting their own ambitious views," but also because "perhaps greater danger, is to be apprehended from their overturning the constitutional powers of the government, and assuming the power to dictate any form they please." [14]
Nonetheless, these misgivings yielded to the necessity of enabling Congress to raise and maintain a federal military force, which was to be placed under the President's sole command. In The Federalist, Hamilton laid bare the strategic vulnerabilities of the United States, emphasizing its exposure along both coast and frontier to potentially hostile European empires or Indian tribes. "On one side of us, and stretching far into our rear, are growing settlements subject to the dominion of Britain. On the other side, and extending to meet the British settlements, are colonies and establishments subject to the dominion of Spain. . . The savage tribes on our Western frontier ought to be regarded as our natural enemies, their natural allies." The Federalist No. 24, at 128-29 (Alexander Hamilton); see also id. No. 25, at 131 (Alexander Hamilton). It had already been found imperative in those circumstances to maintain a standing federal army that could respond to sudden invasions and attacks. Since its independence, the United States had found it "a constant necessity" to maintain garrisons on its western frontier, and "[n]o person can doubt that these will continue to be indispensable, if it should only be against the ravages and depradations of the Indians." Id. No. 24, at 129. Without such a permanent federal force, the United States would be "a nation incapacitated by its Constitution to prepare for defense before it was actually invaded... . We must receive the blow before we could even prepare to return it." Id. No. 25, at 133. According to Hamilton, experience had demonstrated in Britain that "a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government." Id. No. 26, at 138. Madison also argued in The Federalist that standing military forces would be indispensable if the United States were to be prepared to meet sudden attacks, such as a permanent navy that could guard the coasts. Id. No. 41, at 229. Such concerns clearly focused on the ability of the federal Government to maintain a military that could respond to threats both domestically as well as abroad.
If a standing army and navy are required to repel or deter sudden attacks, then by creating such forces and placing them under the President's command, Congress is necessarily authorizing him to deploy those forces. As the argument of The Federalist shows, a fundamental purpose of a standing army and a permanent navy was that they be used in such emergencies. Moreover, Congress could not possibly anticipate every contingency in which those forces might be used. As Commander in Chief, the President necessarily possesses ample discretion to decide how to deploy the forces committed to him. Thus, he could decide it was safer to pre-empt an imminent attack rather than to wait for a hostile power to strike first. In sum, the clauses of Article I relating to a standing army and a navy flow together with Article II's Commander in Chief and Executive Power Clauses to empower the President to use the armed forces to protect the nation from attack, whether domestically or abroad. All three of the first Presidents assumed that they possessed such authority. [15]
Later Views of the Executive Branch. President Lincoln's actions at the start of the Civil War more fully bear out the executive branch's plenary authority to respond swiftly with military force to an armed attack, even if the operations were to occur domestically. Fort Sumter was attacked on April 12, 1861. Lincoln called Congress into a special session beginning on July 4. In the intervening ten weeks, he aggressively pursued military' measures that ensured that the Civil War would be won or lost on the battlefield. On April 15, he called out 75,000 of the state militia. On April 19, he imposed a blockade on Southern ports, an action which until that time had been thought to require a declaration of war. On April 20, President Lincoln authorized the Secretary of the Treasury to spend public money on defense without congressional appropriation. On April 27, he authorized the suspension of habeas corpus by the commanding general of the army. On May 3, he issued a call for volunteers and unilaterally increased the size of the army and navy. According to Lincoln, the South's attack on Fort Sumter "presents to the whole family of man, the question, whether a constitutional republic, or a democracy -- a government of the people, by the same people -- can, or cannot, maintain its territorial integrity, against its own domestic foes." Message to Congress in Special Session (July 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 250 (Don E. Fehrenbacher ed., 1989). "So viewing the issue, no choice was left but to call out the war power of the Government," Lincoln answered, "and so to resist force, employed for its destruction, by force, for its preservation." Id. Congress retroactively ratified his actions, which, of course, involved almost exclusively the deployment of the military domestically.
Attorney General Edward Bates later defended President Lincoln's inherent authority to deploy federal troops to subdue the domestic enemies of the United States:
Suspension of the Privilege of the Writ of Habeas Corpus, 10 Op. Att'y Gen. 74, 82, 84 (1861).
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).
The Views of the Judicial Branch. Judicial decisions support the view that the President possesses an inherent power to use force in response to threats to national security. As the Supreme Court has noted, Article II's Vesting Clause "establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity. These include the enforcement of federal law .. [and] the conduct of foreign affairs." Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982). These powers must include deployment of troops to prevent and deter attacks on the United States and its people by enemies operating secretly within this country.
Judicial decisions since the beginning of the Republic confirm the President's constitutional power and duty to repel violent attacks against the United States through the use of force, and to take measures to deter the recurrence of such attacks. 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, it is his constitutional responsibility to respond to that threat with whatever means are necessary, including the use of military force abroad. As the Court declared during the Civil War: "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." See, e.g., The Prize Cases, 67 U.S. at 668. [16] In the Civil War context, the President used this authority to respond militarily to a threat from within the United States itself.
The courts have also consistently recognized that the executive power extends to the domestic deployment of military force when necessary to safeguard civil order or to protect the public from violent attacks. Although the courts have had little occasion to review the domestic deployment of military force by the President, they have frequently been confronted with its use by Governors, who are similarly imbued with the executive power and the duty to faithfully execute the laws. Analogizing the powers of the Governor of Indiana to the powers of the President, for example, the Indiana Supreme Court ruled in State ex rel. Branigin v. Morgan Superior Court, 231 N.E.2d 516 (Ind. 1967), that as "[t]he power, the duty, and the discretion to manage the military forces of the state are given to the Governor by the Constitution," id. at 519, "[i]f the Governor determines that an exigency requires the use of the military forces, then, in his discretion, he has authority to call out such forces." Id. at 521. Similarly, the New Mexico Supreme Court has observed that "[t]he nature of the [executive] power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order." State ex rel. Roberts v. Swope, 28 P.2d 4, 6 (N.M. 1933) (sanctioning the Governor's use of military force domestically in the face of a threat to civil order). [17] In sum, the principle that the Chief Executive is inherently vested with broad discretion to employ military force both domestically and abroad when necessary to safeguard the public welfare is firmly ingrained in the judicial branch's treatment of the subject since the founding of the Republic.
The Views of Congress. Congress has explicitly recognized the President's constitutional authority to deploy military force to counter a national emergency caused by an attack upon the United States. Section 2(c) of the War Powers Resolution ("WPR") declares:
50 U.S.C. § 1541(c) (1994) (emphasis added). Although the executive branch "has taken the position from the very beginning that § 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. 271, 274 (1984), [18] section 2(c)(3) expresses Congress's recognition of one, if by no means the only, unilateral Presidential authority to deploy military forces. As applied to the present circumstances, the statute signifies Congress' recognition that the President's constitutional authority alone enables 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, if such actions are, in his judgment, a necessary and appropriate response to the national emergency created by those incidents. It is also important to recognize that section 2(c)(3) is not limited, either expressly or by implication, to military actions overseas, but instead recognizes the power to use force without regard to location.
Finally, Congress's support suggests no limits on the President's judgment whether to use military force in response to the current national emergency. 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 this and other memoranda, the constitutional text and structure vest the President 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 to deploy the military, either domestically or abroad, to respond to an attack.
Indeed, we do not believe that the Constitution articulates specific factors that the President must follow in determining whether an attack has occurred, and what response to take. This decision lies wholly within the President's constitutional discretion, and would almost certainly present a political question that would not be reviewed by the courts. See, e.g., Clinton, 203 F.3d at 23; id. at 24-28 (Silberman, J., concurring). Nonetheless, some factors that the President, in his discretion, might consider include the nature of the attack, its magnitude, the number of casualties, the effect on the nation, and whether the attacks are part of a broader conflict with an enemy. Thus, some limited incursions into United States territory -- such as the British pursuit of terrorists who had launched an attack on Canada from the United States -- generally might not qualify as an armed attack on the nation, while others -- such as the surprise Japanese attack on Pearl Harbor, obviously do.
Here, the facts of the September 11 attacks easily would support the conclusion that an armed attack had occurred, sufficient to trigger the President's constitutional authorities. Terrorist groups hijacked planes, effectively transformed them into guided missiles, and launched them into the World Trade Center and the Pentagon, the nation's military headquarters. At least 5,000 civilians and government officials have died, greater than the nation's losses in the Pearl Harbor attack. The attacks led to a temporary shutdown of the nation's air transportation network and the closure of the financial markets. They were the culmination of years of attacks on American facilities and personnel by the Al Qaeda organization over the last eight years. Based on these facts, the President would be justified in using military force, either domestically or abroad, to respond to, and prevent, terrorist attacks upon the United States.
Conclusion. The text and history of the Constitution, supported by the interpretations of past administrations, the courts, and Congress, show that the President has the independent, non-statutory power to take military actions, domestic as well as foreign, if he determines such actions to be necessary to respond to the terrorist attacks upon the United States on September 11, 2001 and before.
III.
The WPR does not stand alone as an acknowledgment by Congress of the President's emergency powers. In the wake of the September 11 incidents, Congress enacted S.J. Res. 23, Pub. L. No. 107-40, 115 Stat. 224 (2001). Congress found that "on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens," that "such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad," and that "such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States." Id. Section 2 authorizes the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
Section 2 authorizes the use of "all necessary and appropriate force" against the designated nations, organizations or persons. Further, Congress declares that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." 115 Stat. at 224. This broad statement reinforces the War Powers Resolution's acknowledgment of the President's constitutional powers in a state of national emergency. Like the War Powers Resolution, Pub. L. No. 107-40 does not limit its authorization and recognition of executive power to the use of force abroad. Indeed, Pub. L. No. 107-40 contemplates that the domestic use of force may well be necessary and appropriate. For example, Pub. L. No. 107-40's findings state that the September 11 attacks "render it both necessary and appropriate that the United States ... protect United States citizens both at home and abroad." Id. (emphasis added). Protection of United States citizens at home could require the use of military force domestically. Moreover, some of the designated persons or groups who aided, abetted, or harbored the terrorists may remain within the United States, and Congress was doubtless aware of that when enacting the legislation.
Therefore, even if one were to disagree with our analysis of the President's inherent authority, Pub. L. No. 107-40 supplies the congressional authorization for the domestic use of military force. In authorizing the President to wage war against the terrorist organizations that attacked the United States on September 11, Pub. L. No. 107-40 approves any necessary and appropriate action to successfully conduct that war. As the Supreme Court has said,
Lichter v. United States, 334 U.S. 742, 780-82 (1948) (quoting Charles E. Hughes, War Powers Under The Constitution, 42 A.B.A. Rep. 232 (1917)). [19] In the present circumstances, the "power to wage war successfully" must include the power to use military force within the territory of the United States, if need be, in order to combat and defeat terrorists who have been operating domestically as well as abroad.
IV.
We next address the question whether the Posse Comitatus Act, 18 U.S.C. § 1385 (the "PCA"), would restrict the President's authority, in present circumstances, to deploy the Armed Forces domestically. We conclude that the PCA does not apply to, and does not prohibit, a Presidential decision to deploy the Armed Forces domestically for military purposes. [20] We believe that domestic deployment of the Armed Forces to prevent and deter terrorism is fundamentally military, rather than law enforcement, in character. Yet, even if the PCA were thought to apply, the statute would still permit domestic deployment due to the PCA's exceptions for actions specifically authorized by the Constitution or statute.
A.
The PCA states:
18 U.S.C. § 1385.21
MEMO __
U.S. Department of Justice
Office of Legal Counsel
Office of the Assistant Attorney General
Washington, D.C. 20530
October 23, 2001
MEMORANDUM FOR ALBERTO R. GONZALES
COUNSEL TO THE PRESIDENT
WILLIAM J. HAYNES, II
GENERAL COUNSEL
DEPARTMENT OF DEFENSE
FROM: John C. Yoo
Deputy Assistant Attorney General
Robert J. Delahunty
Special Counsel
RE: Authority for Use of Military Force to Combat Terrorist Activities Within the United States
You have asked for our Office's views on the authority for the use of military force to prevent or deter terrorist activity inside the United States. Specifically, you have asked whether the Posse Comitatus Act, 18 U.S.C. § 1385 (1994), limits the ability of the President to engage the military domestically, and what constitutional standards apply to its use. We conclude that the President has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States. We further believe that the use of such military force generally is consistent with constitutional standards, and that it need not follow the exact procedures that govern law enforcement operations.
Our analysis falls into five parts. First, we review the President's constitutional powers to respond to terrorist threats in the wake of the September 11, 2001 attacks on the World Trade Center and the Pentagon. We consider the constitutional text, structure and history, and interpretation by the executive branch, the courts and Congress. These authorities demonstrate that the President has ample authority to deploy military force against terrorist threats within the United States.
Second, we assess the legal consequences of S.J. Res. 23, Pub. L. No. 107-40, 115 Stat. 224 (2001), which authorized the President to use force to respond to the incidents of September 11. Enactment of this legislation recognizes that the President may deploy military force domestically and to prevent and deter similar terrorist attacks.
Third, we examine the Posse Comitatus Act, 18 U.S.C. § 1385, and show that it only applies to the domestic use of the Armed Forces for law enforcement purposes, rather than for the performance of military functions. The Posse Comitatus Act itself contains an exception that allows the use of the military when constitutionally or statutorily authorized, which has occurred in the present circumstances.
Fourth, we turn to the question whether the Fourth Amendment would apply to the use of the military domestically against foreign terrorists. Although the situation is novel (at least in the nation's recent experience), we think that the better view is that the Fourth Amendment would not apply in these circumstances. Thus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant.
Fifth, we examine the consequences of assuming that the Fourth Amendment applies to domestic military operations against terrorists. Even if such were the case, we believe that the courts would not generally require a warrant, at least when the action was authorized by the President or other high executive branch official. The Government's compelling interest in protecting the nation from attack and in prosecuting the war effort would outweigh the relevant privacy interests, making the search or seizure reasonable.
I.
The situation in which these issues arise is unprecedented in recent American history. Four coordinated terrorist attacks took place in rapid succession on the morning of September 11, 2001, aimed at critical Government buildings in the nation's capital and landmark buildings in its financial center. The attacks caused more than five thousand deaths, and thousands more were injured. Air traffic and telecommunications within the United States have been disrupted; national stock exchanges were shut for several days; damage from the attack has been estimated to run into the tens of billions of dollars. Hundreds of suspects and possible witnesses have been taken into custody, and more are being sought for questioning. In his Address to a Joint Session of Congress and to the American People on September 20, 2001, President Bush said that "[o]n September the 11th, enemies of freedom committed an act of war against our country." President's Address to a Joint Session of Congress (Sept. 20, 2001), available at http://wwrw.whitehouse.gov/news/release ... 920-8.html.
It is vital to grasp that attacks on this scale and with these consequences are "more akin to war than terrorism." [1] These events reach a different scale of destructiveness than earlier terrorist episodes, such as the destruction of the Murrah Building in Oklahoma City, Oklahoma in 1994. Further, it appears that the September 11 attacks are part of a violent terrorist campaign against the United States by groups affiliated with Al-Qaeda, an organization created in 1988 by Usama bin Laden. Al-Qaeda and its affiliates are believed to be responsible for a series of attacks upon the United States and its citizens that include a suicide bombing attack in Yemen on the U.S.S. Cole in 2000; the bombings of the United States Embassies in Kenya and in Tanzania in 1998; a truck bomb attack on a U.S. military housing complex in Saudi Arabia in 1996; an unsuccessful attempt to destroy the World Trade Center in 1993; and the ambush of U.S. servicemen in Somalia in 1993 by militia believed to have been trained by Al-Queda. [2] A pattern of terrorist activity of this scale, duration, extent, and intensity, directed primarily against the United States Government, its military and diplomatic personnel and its citizens, can readily be described as a "war " [3]
On the other hand, there are at least two important ways in which these attacks differ from past "wars" in which the United States has been involved. First, this conflict may take place, in part, on the soil of the United States. Except for the Revolutionary War, the War of 1812, and the Civil War, the United States has been fortunate that the theatres of military operations have been located primarily abroad. This allowed for a clear distinction between the war front, where the actions of military commanders were bound only by the laws of war and martial law, and the home front, where civil law and the normal application of constitutional law applied. September 11's attacks demonstrate, however, that in this current conflict the war front and the home front cannot be so clearly distinguished -- the terrorist attacks were launched from within the United States against civilian targets within the United States.
Second, the belligerent parties in a war are traditionally nation-states, see The Prize Cases, 67 U.S. (2 Black) 635, 666 (1862), or at least groups or organizations claiming independent nationhood and exercising effective sovereignty over a territory, id.; see also Coleman v. Tennessee, 97 U.S. 509, 517 (1878). [4] Here, Al-Qaeda is not a nation (although they have been harbored by foreign governments and may have received support and training from them). Like terrorists generally, Al-Qaeda's forces bear no distinctive uniform, do not carry arms openly, and do not represent the regular or even irregular military personnel of any nation. Rather, it is their apparent aim to intermingle with the ordinary civilian population in a manner that conceals their purposes and makes their activities hard to detect. Rules of engagement designed for the protection of non-combatant civilian populations, therefore, come under extreme pressure when an attempt is made to apply them in a conflict with terrorism.
This, then, is armed conflict between a nation-state and an elusive, clandestine group or network of groups striking unpredictably at civilian and military targets both inside and outside the United States. Because the scale of the violence involved in this conflict removes it from the sphere of operations designed to enforce the criminal laws, legal and constitutional rules regulating law enforcement activity are not applicable, or at least not mechanically so. As a result, the uses of force contemplated in this conflict are unlike those that have occurred in America's other recent wars. Such uses might include, for example, targeting and destroying a hijacked civil aircraft in circumstances indicating that hijackers intended to crash the aircraft into a populated area; deploying troops and military equipment to monitor and control the flow of traffic into a city; attacking civilian targets, such as apartment buildings, offices, or ships where suspected terrorists were thought to be; and employing electronic surveillance methods more powerful and sophisticated than those available to law enforcement agencies. These military operations, taken as they may be on United States soil, and involving as they might American citizens, raise novel and difficult questions of constitutional law.
II.
We believe that Article II of the Constitution, which vests the President with the power to respond to emergency threats to the national security, directly authorizes use of the Armed Forces in domestic operations against terrorists. Although the exercise of such authority usually has concerned the use of force abroad, there have been cases, from the 1794 Whiskey Rebellion on, [5] in which the President has deployed military force within the United States against armed forces operating domestically. During the Civil War and the War of 1812, federal troops fought enemy armies operating within the continental United States. On other occasions, the President has used military force within the United States against Indian tribes and bands. In yet other circumstances, the Armed Forces have been used to counter resistance to federal court orders, to protect the officials, agents, property or instrumentalities of the federal Government, or to ensure that federal governmental functions can be safely performed. [6] We believe that the text, structure, and history of the Constitution, in light of its executive, legislative, and judicial interpretation, clearly supports deployment of the military domestically, as well as abroad, to respond to attacks on the United States.
The Text, Structure and History of the Constitution. The text, structure and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to ensure the security of the United States in situations of compelling, unforeseen, and possibly recurring, threats to the nation's security.
Drawing on their experiences during the Revolutionary War and the Articles of Confederation, the Framers designed a Constitution that would vest the federal Government with sufficient authority to respond to any national emergency. In particular, the Framers were aware of the possibility of invasions or insurrections, and they understood that in some cases such emergencies could be met only by the use of federal military force. By definition, responding to these events would involve the use of force by the military within the continental United States. One of the signal defects of the Articles of Confederation was its failure to establish a federal Government that could respond to attacks from without or within. As James Madison observed before the start of the Federal Convention, the chief difficulty with the Articles was the "want of Guaranty to the States of their Constitutions & laws against internal violence." Vices of the Political System of the United States (Apr. 1787), in 9 The Papers of James Madison 345, 350 (Robert A. Rutland et al. eds., 1975). Similarly, Edmund Randolph argued before the Philadelphia Convention on May 29, 1787, that "the confederation produced no security agai[nst] foreign invasion; congress not being permitted to prevent a war nor to support it by th[eir] own authority." 1 Max Farrand, The Records of the Federal Convention of 1787, at 19 (1911) (alterations in original). [7]
As they understood it, the Constitution amply provided the federal Government with the authority to respond to such exigencies. "There are certain emergencies of nations in which expedients that in the ordinary state of things ought to be forborne become essential to the public weal. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them." The Federalist No. 36, at 191 (Alexander Hamilton). 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 efficacy." Id. No. 23, at 122 (Alexander Hamilton). As the nature and frequency of these emergencies could not be predicted, so too the Framers did not try to enumerate all of the powers necessary in response. Rather, they assumed that the national government would possess a broad authority to take action to meet any emergency. The federal Government is to possess "an indefinite power of providing for emergencies as they might arise." Id. No. 34, at 175 (Alexander Hamilton). Events leading up to the Federal Convention, such as Shay's Rebellion, clearly demonstrated the need for a central government that could use military force domestically. [8]
This power includes the authority to use force to protect the nation, whether at home or abroad. It "cannot be denied," Hamilton argued, that "there may happen cases in which the national government may be necessitated to resort to force." Id. No. 28, at 146 (Alexander Hamilton). "Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes exist in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body." Id. In this event, Hamilton observed, the federal Government must have power to use the military. "Should such emergencies at any time happen under the national government, there could be no remedy but force." Id.
To address these concerns, Article H vests in the President the Chief Executive and Commander in Chief Powers. The Framers' understanding of the meaning of "executive" power confirms that by vesting that power in the President, they granted him the broad powers necessary to the proper functioning of the government and to the security of the nation. Article II, Section 1 provides that "[t]he executive Power shall be vested in a President of the United States." By contrast, Article I's Vesting Clause gives Congress only the powers "herein granted." Id. art. I, § 1. This textual difference indicates that Congress's legislative powers are limited to the list enumerated in Article I, Section 8, while the President's powers include all federal executive powers unenumerated in the Constitution. To be sure, Article II specifically lists powers, such as the treaty and appointments powers, and some have argued that this limits the "executive Power" granted in the Vesting Clause to the powers on that list. These powers, however, are explicitly listed rather than subsumed within the Vesting Clause because parts of these once plenary executive powers have been either divided between Articles I and II (such as the war power), or have been altered by inclusion of the Senate (as with treaties and appointments). Article II's enumeration of the Treaty and Appointments Clauses, for example, only dilutes the unitary nature of the executive branch in regard to the exercise of those-powers, rather than transforms them into quasi-legislative functions.
Thus, an executive power, such as the power to use force in response to attacks upon the nation, not specifically detailed in Article II, Section 2, must remain with the President. This has been the general approach in regard to other powers not mentioned in the Constitution. See, e.g., Bowsher v. Synar, 478 U.S. 714 (1986) (removal power). In defending President Washington's authority to issue the Neutrality Proclamation, Alexander Hamilton came to the same interpretation of the President's powers. According to Hamilton, Article II "ought ... to be considered as intended by way of greater caution 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), in 15 The Papers of Alexander Hamilton, 33, 39 (Harold C. Syrett et al. eds., 1969). Hamilton further observed that "[t]he general doctrine then of our constitution is, that the Executive Power of the Nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument." Id.
These "exceptions" and "qualifications" are limited to those powers, in which the Framers unbundled certain plenary powers that had traditionally been regarded as "executive." Some elements of those powers were assigned to Congress in Article 1, while other elements were expressly retained as executive powers in the enumerations in Article II. So, for example, the King's traditional powers with respect to war and peace were disaggregated: the royal 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 11. [9] Further, the Framers altered other plenary powers of the King, such as treaties and appointments, by including the Senate in their exercise. [10] Any other, unenumerated executive powers, however, were conveyed to the President by the Vesting Clause.
Such unenumerated power includes the authority to use military force, whether at home or abroad, in response to a direct attack upon the United States. There can be little doubt that the decision to deploy military force is "executive" in nature, and was traditionally so regarded. At the time of the Framing, the commander in chief and executive powers were commonly understood to include the executive's sole authority to use the military to respond to attacks, invasions, or threats to a nation's security. [11] Using the military to defend the nation requires action and energy in execution, rather than the deliberate formulation of rules to govern private conduct. "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 to a particular branch the power to respond to critical threats to the nation's security and civil order, the Vesting Clause provides that it remains among the President's unenumerated executive powers.
The records of the Philadelphia Convention further demonstrate that the Framers intended to secure the President's authority to meet foreign attacks on or within the United States. On August 17, 1787, the Convention debated the proposal to grant Congress the power "To make war." James Madison and Elbridge Gerry "moved to insert 'declare,' striking out 'make' war; leaving to the Executive the power to repel sudden attacks." 2 Farrand, supra at 318 (final emphasis added). Although he opposed the Madison-Gerry motion, Richard Sherman nonetheless agreed that "[t]he Executive shd. be able to repel ... war." Id. The Madison-Gerry motion was initially adopted by the votes of 7 states to 2. Id. at 319. At the very least, therefore, the Framers understood the executive and commander in chief powers to give the President the full constitutional authority to respond to an attack. It was clearly understood that this authority included the power to use force domestically as well as abroad.
Early Constitutional Practice. Early judicial, congressional and executive practice also support our interpretation of the President's emergency powers. As Justice William Peterson, himself a prominent delegate to the Philadelphia Convention, wrote in United States v. Smith, 27 F. Cas. 1192, 1230 (C.C.D.N.Y. 1806) (No. 16,342), even absent statutory authorization, it would be "the duty . . . of the executive magistrate ... to repel an invading foe." Id. at 1230. "[l]t would," Justice Paterson remarked, "be not only lawful for the president to resist such invasion, but also to carry hostilities into the enemy's own country." Id. The First Congress -- in which many of the Framers sat -- also recognized this emergency Presidential authority. In response to President George Washington's request to regularize the status of the (then some 672) troops in the service of the United States, Congress ratified the previous military establishment in nearly all respects. Act of September 29, 1789, 1 Stat. 95. Washington had explained that he was seeking regular federal military forces in part so that he might defend the frontier from hostile Indians, but the statute remained silent on the purposes for which the troops might be deployed. James Madison seems to have understood this statutory silence to signify that once Congress had made troops available to the President, he could deploy them for defensive purposes as he judged best. "By the constitution, the President has the power of employing these troops for the protection of those parts (of the frontier] which he thinks require[] them most." I Annals of Cong. 724 (Joseph Gales ed., 1789) (statement of Rep. James Madison). The next year, Congress took further steps to put the federal army on a permanent basis. Act of April 30, 1790, 1 Stat. 119. Although this statute gave the President no express authority to protect the frontiers, it "plainly assumed that the President already had that power.. . [T]he inference is strong that Congress thought the requisite authority inherent in the office of Commander in Chief." David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801, at 83 (1997). The President's constitutional authority to deploy troops to protect the frontier was not thought to be confined to defensive operations: "[B]oth Secretary [of War] Knox and [President] Washington himself seemed to think this [Commander in Chief] authority extended to offensive operations undertaken in retaliation for Indian atrocities." Id. at 84. Thus, these early actions show that the Framers understood the Constitution to permit the President to deploy the military domestically to respond to threats to the national security.
Once Congress has provided the President with armed forces, he has the discretion to deploy them both defensively and offensively to protect the nation's security. The Constitution empowers Congress to raise an army and to provide a navy even in time of peace. U.S. Const. art. I, § 8, cis. 12-13. The Philadelphia Convention's proposal to grant this power was highly contentious. Pre-constitutional American political thought and practice had disfavored standing armies in time of peace. [12] The Declaration of Independence objected that the King "kept among us, in Times of Peace, Standing Armies, without the consent of our Legislatures." Id. para 13 (U.S. 1776). The Articles of Confederation restricted the powers of the States to maintain "vessels of war" and "any body of forces" in time of peace. Articles of Confederation, art. VI, cl. 4, reprinted in 4 Encyclopedia of the American Constitution app. 2, at 2093 (Leonard W. Levy ed., 1986). At the Philadelphia Convention, Elbridge Gerry argued that the proposed Constitution was defective because "there was <no> check here agst. standing armies in time of peace. The existing Cong. is so constructed that it cannot of itself maintain an army. This wd. not be the case under the new system. The people were jealous on this head, and great opposition to the plan would spring from such an omission." [13] Anti-Federalists vigorously opposed authorizing Congress to establish such forces not only because "the rulers may employ them for the purpose of promoting their own ambitious views," but also because "perhaps greater danger, is to be apprehended from their overturning the constitutional powers of the government, and assuming the power to dictate any form they please." [14]
Nonetheless, these misgivings yielded to the necessity of enabling Congress to raise and maintain a federal military force, which was to be placed under the President's sole command. In The Federalist, Hamilton laid bare the strategic vulnerabilities of the United States, emphasizing its exposure along both coast and frontier to potentially hostile European empires or Indian tribes. "On one side of us, and stretching far into our rear, are growing settlements subject to the dominion of Britain. On the other side, and extending to meet the British settlements, are colonies and establishments subject to the dominion of Spain. . . The savage tribes on our Western frontier ought to be regarded as our natural enemies, their natural allies." The Federalist No. 24, at 128-29 (Alexander Hamilton); see also id. No. 25, at 131 (Alexander Hamilton). It had already been found imperative in those circumstances to maintain a standing federal army that could respond to sudden invasions and attacks. Since its independence, the United States had found it "a constant necessity" to maintain garrisons on its western frontier, and "[n]o person can doubt that these will continue to be indispensable, if it should only be against the ravages and depradations of the Indians." Id. No. 24, at 129. Without such a permanent federal force, the United States would be "a nation incapacitated by its Constitution to prepare for defense before it was actually invaded... . We must receive the blow before we could even prepare to return it." Id. No. 25, at 133. According to Hamilton, experience had demonstrated in Britain that "a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government." Id. No. 26, at 138. Madison also argued in The Federalist that standing military forces would be indispensable if the United States were to be prepared to meet sudden attacks, such as a permanent navy that could guard the coasts. Id. No. 41, at 229. Such concerns clearly focused on the ability of the federal Government to maintain a military that could respond to threats both domestically as well as abroad.
If a standing army and navy are required to repel or deter sudden attacks, then by creating such forces and placing them under the President's command, Congress is necessarily authorizing him to deploy those forces. As the argument of The Federalist shows, a fundamental purpose of a standing army and a permanent navy was that they be used in such emergencies. Moreover, Congress could not possibly anticipate every contingency in which those forces might be used. As Commander in Chief, the President necessarily possesses ample discretion to decide how to deploy the forces committed to him. Thus, he could decide it was safer to pre-empt an imminent attack rather than to wait for a hostile power to strike first. In sum, the clauses of Article I relating to a standing army and a navy flow together with Article II's Commander in Chief and Executive Power Clauses to empower the President to use the armed forces to protect the nation from attack, whether domestically or abroad. All three of the first Presidents assumed that they possessed such authority. [15]
Later Views of the Executive Branch. President Lincoln's actions at the start of the Civil War more fully bear out the executive branch's plenary authority to respond swiftly with military force to an armed attack, even if the operations were to occur domestically. Fort Sumter was attacked on April 12, 1861. Lincoln called Congress into a special session beginning on July 4. In the intervening ten weeks, he aggressively pursued military' measures that ensured that the Civil War would be won or lost on the battlefield. On April 15, he called out 75,000 of the state militia. On April 19, he imposed a blockade on Southern ports, an action which until that time had been thought to require a declaration of war. On April 20, President Lincoln authorized the Secretary of the Treasury to spend public money on defense without congressional appropriation. On April 27, he authorized the suspension of habeas corpus by the commanding general of the army. On May 3, he issued a call for volunteers and unilaterally increased the size of the army and navy. According to Lincoln, the South's attack on Fort Sumter "presents to the whole family of man, the question, whether a constitutional republic, or a democracy -- a government of the people, by the same people -- can, or cannot, maintain its territorial integrity, against its own domestic foes." Message to Congress in Special Session (July 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865, at 250 (Don E. Fehrenbacher ed., 1989). "So viewing the issue, no choice was left but to call out the war power of the Government," Lincoln answered, "and so to resist force, employed for its destruction, by force, for its preservation." Id. Congress retroactively ratified his actions, which, of course, involved almost exclusively the deployment of the military domestically.
Attorney General Edward Bates later defended President Lincoln's inherent authority to deploy federal troops to subdue the domestic enemies of the United States:
It is the plain duty of the President (and his peculiar duty, above and beyond all other departments of the Government) to preserve the Constitution and execute the laws over all the nation; and it is plainly impossible for him to perform this duty without putting down rebellion, insurrection, and all unlawful combinations to resist the General Government... In such a state of things, the President must, of necessity, be the sole judge, both of the exigency which requires him to act, and of the manner in which it is most prudent for him to deploy the powers entrusted to him, to enable him to discharge his constitutional and legal duty -- that is, to suppress the insurrection and execute the laws.
Suspension of the Privilege of the Writ of Habeas Corpus, 10 Op. Att'y Gen. 74, 82, 84 (1861).
More recent statements of the executive branch's views have been similar. Thus, Attorney General (later Justice) Frank Murphy 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).
The Views of the Judicial Branch. Judicial decisions support the view that the President possesses an inherent power to use force in response to threats to national security. As the Supreme Court has noted, Article II's Vesting Clause "establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity. These include the enforcement of federal law .. [and] the conduct of foreign affairs." Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982). These powers must include deployment of troops to prevent and deter attacks on the United States and its people by enemies operating secretly within this country.
Judicial decisions since the beginning of the Republic confirm the President's constitutional power and duty to repel violent attacks against the United States through the use of force, and to take measures to deter the recurrence of such attacks. 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, it is his constitutional responsibility to respond to that threat with whatever means are necessary, including the use of military force abroad. As the Court declared during the Civil War: "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." See, e.g., The Prize Cases, 67 U.S. at 668. [16] In the Civil War context, the President used this authority to respond militarily to a threat from within the United States itself.
The courts have also consistently recognized that the executive power extends to the domestic deployment of military force when necessary to safeguard civil order or to protect the public from violent attacks. Although the courts have had little occasion to review the domestic deployment of military force by the President, they have frequently been confronted with its use by Governors, who are similarly imbued with the executive power and the duty to faithfully execute the laws. Analogizing the powers of the Governor of Indiana to the powers of the President, for example, the Indiana Supreme Court ruled in State ex rel. Branigin v. Morgan Superior Court, 231 N.E.2d 516 (Ind. 1967), that as "[t]he power, the duty, and the discretion to manage the military forces of the state are given to the Governor by the Constitution," id. at 519, "[i]f the Governor determines that an exigency requires the use of the military forces, then, in his discretion, he has authority to call out such forces." Id. at 521. Similarly, the New Mexico Supreme Court has observed that "[t]he nature of the [executive] power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order." State ex rel. Roberts v. Swope, 28 P.2d 4, 6 (N.M. 1933) (sanctioning the Governor's use of military force domestically in the face of a threat to civil order). [17] In sum, the principle that the Chief Executive is inherently vested with broad discretion to employ military force both domestically and abroad when necessary to safeguard the public welfare is firmly ingrained in the judicial branch's treatment of the subject since the founding of the Republic.
The Views of Congress. Congress has explicitly recognized the President's constitutional authority to deploy military force to counter a national emergency caused by an attack upon the United States. Section 2(c) of the War Powers Resolution ("WPR") declares:
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) (1994) (emphasis added). Although the executive branch "has taken the position from the very beginning that § 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. 271, 274 (1984), [18] section 2(c)(3) expresses Congress's recognition of one, if by no means the only, unilateral Presidential authority to deploy military forces. As applied to the present circumstances, the statute signifies Congress' recognition that the President's constitutional authority alone enables 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, if such actions are, in his judgment, a necessary and appropriate response to the national emergency created by those incidents. It is also important to recognize that section 2(c)(3) is not limited, either expressly or by implication, to military actions overseas, but instead recognizes the power to use force without regard to location.
Finally, Congress's support suggests no limits on the President's judgment whether to use military force in response to the current national emergency. 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 this and other memoranda, the constitutional text and structure vest the President 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 to deploy the military, either domestically or abroad, to respond to an attack.
Indeed, we do not believe that the Constitution articulates specific factors that the President must follow in determining whether an attack has occurred, and what response to take. This decision lies wholly within the President's constitutional discretion, and would almost certainly present a political question that would not be reviewed by the courts. See, e.g., Clinton, 203 F.3d at 23; id. at 24-28 (Silberman, J., concurring). Nonetheless, some factors that the President, in his discretion, might consider include the nature of the attack, its magnitude, the number of casualties, the effect on the nation, and whether the attacks are part of a broader conflict with an enemy. Thus, some limited incursions into United States territory -- such as the British pursuit of terrorists who had launched an attack on Canada from the United States -- generally might not qualify as an armed attack on the nation, while others -- such as the surprise Japanese attack on Pearl Harbor, obviously do.
Here, the facts of the September 11 attacks easily would support the conclusion that an armed attack had occurred, sufficient to trigger the President's constitutional authorities. Terrorist groups hijacked planes, effectively transformed them into guided missiles, and launched them into the World Trade Center and the Pentagon, the nation's military headquarters. At least 5,000 civilians and government officials have died, greater than the nation's losses in the Pearl Harbor attack. The attacks led to a temporary shutdown of the nation's air transportation network and the closure of the financial markets. They were the culmination of years of attacks on American facilities and personnel by the Al Qaeda organization over the last eight years. Based on these facts, the President would be justified in using military force, either domestically or abroad, to respond to, and prevent, terrorist attacks upon the United States.
Conclusion. The text and history of the Constitution, supported by the interpretations of past administrations, the courts, and Congress, show that the President has the independent, non-statutory power to take military actions, domestic as well as foreign, if he determines such actions to be necessary to respond to the terrorist attacks upon the United States on September 11, 2001 and before.
III.
The WPR does not stand alone as an acknowledgment by Congress of the President's emergency powers. In the wake of the September 11 incidents, Congress enacted S.J. Res. 23, Pub. L. No. 107-40, 115 Stat. 224 (2001). Congress found that "on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens," that "such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad," and that "such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States." Id. Section 2 authorizes the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
Section 2 authorizes the use of "all necessary and appropriate force" against the designated nations, organizations or persons. Further, Congress declares that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." 115 Stat. at 224. This broad statement reinforces the War Powers Resolution's acknowledgment of the President's constitutional powers in a state of national emergency. Like the War Powers Resolution, Pub. L. No. 107-40 does not limit its authorization and recognition of executive power to the use of force abroad. Indeed, Pub. L. No. 107-40 contemplates that the domestic use of force may well be necessary and appropriate. For example, Pub. L. No. 107-40's findings state that the September 11 attacks "render it both necessary and appropriate that the United States ... protect United States citizens both at home and abroad." Id. (emphasis added). Protection of United States citizens at home could require the use of military force domestically. Moreover, some of the designated persons or groups who aided, abetted, or harbored the terrorists may remain within the United States, and Congress was doubtless aware of that when enacting the legislation.
Therefore, even if one were to disagree with our analysis of the President's inherent authority, Pub. L. No. 107-40 supplies the congressional authorization for the domestic use of military force. In authorizing the President to wage war against the terrorist organizations that attacked the United States on September 11, Pub. L. No. 107-40 approves any necessary and appropriate action to successfully conduct that war. As the Supreme Court has said,
The power to wage war is the power to wage war successfully... [T]he power has been expressly given to Congress to prosecute war, and to pass all laws which shall be necessary and proper for carrying that power into execution. That power explicitly conferred and absolutely essential to the safety of the Nation is not destroyed or impaired by any later provision of the constitution or by any one of the amendments. These may all be construed so as to avoid making the constitution self-destructive, so as to preserve the rights of the citizen from unwarrantable attack, while assuring beyond all hazard the common defence and the perpetuity of our liberties." . . . The war powers of Congress and the President are only those which are to be derived from the Constitution but, in the light of the language just quoted, the primary implication of a war power is that it shall be an effective power to wage the war successfully.
Lichter v. United States, 334 U.S. 742, 780-82 (1948) (quoting Charles E. Hughes, War Powers Under The Constitution, 42 A.B.A. Rep. 232 (1917)). [19] In the present circumstances, the "power to wage war successfully" must include the power to use military force within the territory of the United States, if need be, in order to combat and defeat terrorists who have been operating domestically as well as abroad.
IV.
We next address the question whether the Posse Comitatus Act, 18 U.S.C. § 1385 (the "PCA"), would restrict the President's authority, in present circumstances, to deploy the Armed Forces domestically. We conclude that the PCA does not apply to, and does not prohibit, a Presidential decision to deploy the Armed Forces domestically for military purposes. [20] We believe that domestic deployment of the Armed Forces to prevent and deter terrorism is fundamentally military, rather than law enforcement, in character. Yet, even if the PCA were thought to apply, the statute would still permit domestic deployment due to the PCA's exceptions for actions specifically authorized by the Constitution or statute.
A.
The PCA states:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
18 U.S.C. § 1385.21