Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka
Posted: Fri Oct 11, 2013 8:06 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
March 13, 2002
Memorandum for William J. Haynes, II
General Counsel, Department of Defense
Re: The President's power as Commander in Chief to transfer captured terrorists to the control and custody of foreign nations
You have asked for our Office's views on the laws applicable to the transfer of members of the Taliban militia, al Qaeda, or other terrorist organizations, who have come under the control of the United States armed forces, to other countries. We conclude that the President has plenary constitutional authority, as the Commander in Chief, to transfer such individuals who are captured and held outside the United States to the control of another country. Individuals who are detained within the United States, however, may be subject to a more complicated set of rules established by both treaty and statute.
Part I of this memorandum discusses the President's constitutional authority, supported by two centuries of historical practice, to detain and transfer enemy prisoners captured in wartime. It reviews the two relevant treaties that regulate transfer -- the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316 ("GPW"), and the Torture Convention and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Apr. 18, 1987, 23 I.L.M. 1027 (entered into force June 26, 1987) (the "Torture Convention" or the "Convention"), -- and it explains that these conventions do not apply to the factual situation posed by the transfer of al Qaeda or Taliban prisoners to third countries. As you have requested, we also survey in Part II the domestic legal rules governing extradition, and in Part III the domestic standards that govern removal under the immigration laws.
We conclude that the President has full discretion to transfer al Qaeda and Taliban prisoners captured overseas and detained outside the territorial jurisdiction of the United States to third countries. GPW does not restrict the President's discretion because the President has determined that the al Qaeda or Taliban detainees are not legally entitled to prisoner of war ("POWs") status within the meaning of the Conventions. The Torture Convention poses no obstacle to transfer because the treaty does not apply extraterritorially. As removal applies only to the transfer of individuals already within the territorial jurisdiction of the United States, and as extradition is rarely if ever applied to individuals held abroad, those methods of transfer do not apply to the detainees held either in Afghanistan or at the U.S. Naval Base at Guantanamo Bay, Cuba.
I. THE COMMANDER-IN-CHIEF POWER
Throughout history, army commanders-in chief have exercised the power to "dispose of the liberty" of prisoners captured during military engagements. This power has traditionally included the right to transfer such prisoners to the custody of third parties, including neutral countries and allied belligerents. As a matter of constitutional text and structure, the location of the Commander-in-Chief power in Article 11 of the Constitution makes clear that this function, historically held by military commanders-in chief, lies within the discretion of the executive branch. Our constitutional history and practice confirms this: the President has since the Founding era exercised exclusive and virtually unfettered control over the disposition of enemy soldiers and agents captured in time of war. Indeed, on several occasions throughout American history, the President, either in furtherance of particular diplomatic or military objectives or merely for the sake of convenience, has transferred POWs from the custody and control of the United States to the custody and control of other foreign nations.
Those treaties that purport to govern the transfer of detained individuals generally do not apply in the context of the current war against al Qaeda and other terrorist groups. Even if those treaties were applicable to the present conflict, however, they do not impose significant restrictions on the operation of the President's Commander-in-Chief authority. The GPW imposes some limitations on the transfer of United States-held POWs to other nations. These limitations, however, apply only to individuals who are legally entitled to POW status, and leave the President considerable discretion as to when such transfers are permissible. Further, as this Office has explained elsewhere, the members of non-state terrorist organizations such as al Qaeda are not entitled to POW status as a matter of law because the GPW's protections for POWs apply only to international armed conflicts between state parties. See Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes, II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Application of Treaties and Laws to at Qaeda and Taliban Detainees at 9-10 (Jan. 22, 2002) ("GPW Memo"). Therefore, there are no GPW constraints on the President's ability to transfer al Qaeda prisoners to third countries. The Torture Convention also imposes limitations on transfer, but those restrictions have no extraterritorial effect and thus are not applicable to prisoners who are captured and detained abroad. [1]
A. Presidential Authority Under The Constitution
This Part discusses the sources of the President's constitutional authority to transfer military detainees to third countries. Throughout United States history, the Constitution's vesting of the Commander-in-Chief and Chief Executive powers in the President has been understood to provide this affirmative legal authority. These grants have long been understood to include the authority to "dispose of the liberty" of enemy soldiers and agents captured in time of war. This view of the President's war powers is supported by the Constitution's text and a comprehensive understanding of its structural allocation of powers, but also by an unbroken chain of historical practice dating back to the Founding era. In tandem, these factors conclusively demonstrate that the Commander-in-Chief Clause constitutes an independent grant of substantive authority to engage in the detention and transfer of prisoners captured in armed conflicts.
1. Constitutional text and structure
The text, structure, and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to control and conduct military operations engaged in by the United States. 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. He is vested broadly with all of "[t]he executive Power" and the duty to execute the laws. Id. art. II, § 1.
By their terms, these provisions vest full control of the military operations of the United States in 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, 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), and that the authority conferred includes all those powers not expressly delegated by the Constitution to Congress that have traditionally been exercised by commanders-in chief of armed forces.
Moreover, as the courts have consistently recognized, the President's discretion in exercising the Commander-in-Chief power is complete, and his military decisions are not subject to challenge in the courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court faced the question whether the President "in fulfilling his duties as Commander in Chief" could treat the rebellious States as belligerents by instituting a blockade. The Court concluded that this 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." [2]
The Constitution's textual commitment to the President of control over the minutiae and the grand strategy of military operations alike is reinforced by analysis of the Constitution's 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 472 (Alexander Hamilton) (Jacob E. Cooke ed., 1982 reprint) (1961). 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 make command decisions affecting operations in the field with a speed and energy that is far superior to any other branch. As Hamilton noted, "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 500 (Alexander Hamilton).
The handling and disposition of individuals captured during military operations requires command-type decisions and the swift exercise of judgment that can only be made by "a single hand." The strength of enemy forces, the morale of our troops, the gathering of intelligence about the dispositions of the enemy, the construction of infrastructure that is crucial to military operations, and the treatment of captured United States servicemen may all be affected by the policies pursued in this arena. Quick, decisive determinations must often be made in the face of the shifting contingencies of military fortunes. [3] This is the essence of executive action.
Second, the constitutional structure requires that any ambiguity in the allocation of a power that is executive in nature must be resolved in favor of the executive branch. As this Office has recently explained, see Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sept. 25, 2001) ("September 25 War Powers Memorandum"), 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. 1, § 1. This difference in language indicates that Congress's legislative powers are limited to the list enumerated in Article 1, Section 8, while the President's powers include inherent executive powers that are unenumerated in the Constitution. The unification of executive power in Article II requires that unenumerated powers that can fairly be described as "executive" in nature belong to the President, except where the Constitution expressly vests the power in Congress. For example, as Commander in Chief, the President would ordinarily have plenary power to provide rules for the armed forces, but Article 1, Section 8, Clause 14 excepts this power from the executive by expressly committing it to Congress. U.S. Const. Art. 1, sec. 8, cl. 14 ("The Congress shall have Power... [t]o make Rules for the Government and Regulation of the land and naval Forces"). Even if the Constitution's entrustment of the Commander-in-Chief power to the President did not bestow upon him the authority to make unilateral determinations regarding the disposition of captured enemies, the President would nevertheless enjoy such a power by virtue of the broad sweep of the Vesting Clause. Thus, the power to dispose of the liberty of individuals captured and brought under the control of United States armed forces during military operations remains in the hands of the President alone unless the Constitution specifically commits the power to Congress.
The debates over the Constitution confirm that the Framers understood the Commander- in-Chief power to include all powers related to the conduct of war, with the exception only of those few powers that were expressly carved out and delegated to Congress. During the debates in the Federal Convention, for example, a clause that would have given Congress the power to "make" war was amended to give Congress the power only to "declare" it, in part because it was understood that as the Commander in Chief the President should enjoy the sole authority to conduct warfare. [4] The treatment of captured enemy soldiers is but one of the many facets of the conduct of war, entrusted by the Constitution in plenary fashion to the President by virtue of the Commander-in-Chief Clause. Moreover, it is an area in which the President appears to enjoy exclusive authority, as the power to handle captured enemy soldiers is not reserved by the Constitution in whole or in part to any other branch of the government.
It might be argued that Article I, Section 8, Clause 11, which grants Congress the power to "make Rules concerning Captures on Land and Water," addresses captured enemy soldiers. That provision has never been applied by the courts or by Congress to captured persons, however, and appears always to have been understood as pertaining to captured property only. Article IX of the Articles of Confederation, from which the provision is derived, more clearly indicated that the power extended only to property, stating that Congress would have the power of establishing rules for deciding, in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated." Articles of Confederation, art. 1X, reprinted in Encyclopedia of the American Constitution app. 2, at 2094 (Leonard W. Levy ed., 1986). The Articles of Confederation provision clearly did not apply to captured enemy soldiers, as persons can neither be "divided" nor "appropriated." Moreover, the term capture, which is used both in the Articles of Confederation and in the Constitution, is defined by international law as "[t]he taking of property by one belligerent from another or from an offending neutral." 1 Bouvier's Law Dictionary 422 (Rawle's 3d rev. 1914) (emphasis added). Thus, in his exhaustive commentaries on the Constitution, Justice Story noted that Article I, Section 8, Clause 11 confers on Congress the power to "authorize the seizure of and condemnation of the property of the enemy within, or without the territory of the United States," yet he made no mention of any authority being vested in Congress over captured persons. Joseph Story, Commentaries on the Constitution of the United States § 1172, at 64 (reprinted 1991) (1833). This contextual understanding of the text of Article I, Section 8, Clause 11, buttressed by the absence in the historical record of any invocations of the clause by Congress or the courts in support of legislation applying to captured persons, leaves no doubt that Congress's power "to make Rules concerning Captures on Land or Water" applies only to captured property.
Article I, Section 8, Clause 12, which vests Congress with the authority to "raise and support Armies," and Clause 14, which vests it with power to "make Rules for the Government and Regulation of the land and naval Forces," might also be thought to confer on Congress the power to promulgate prisoner of war policy. Using its funding power, Congress might attempt to place legislative riders on military appropriations that would seek to require certain treatment of prisoners of war. While this Office has concluded elsewhere that Congress cannot use the appropriations power to interfere with areas of plenary presidential power, see Memorandum for Abner J. Mikva, Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Bill to Relocate United States Embassy From Tel Aviv to Jerusalem (May 16, 1995), Congress has not done so here, and so we need not reach that question. Congress also could attempt to use its authority to make rules for regulation of the military to establish standards for prisoner detention and transfer. While we believe that Congress's power on this point is limited to the discipline of U.S. troops, and not to issues such as the rules of engagement and treatment concerning enemy combatants, we have no need to directly address the question because Congress has not enacted any such statute. In fact, Congress's historical silence, as we will explain below, demonstrates that Congress itself has not understood its powers to reach so far into areas of presidential competence.
The historical context in which the Constitution was ratified supplies additional support for our view that the constitutional structure allocates to the President the plenary power to dispose of the liberty of military detainees. In particular, our understanding of the Constitution's allocation of powers between Congress and the President is informed by the British Constitution's allocation of powers between Parliament and the Crown. The Framers had lived under the British Constitution as English colonists, and in drafting their own Constitution they borrowed heavily from the legal and political concepts that formed the foundation principles of British constitutional government. Significant departures from the framework of the British government were explicitly spelled out in the Constitution's text, with the gaps left to be filled in by the Framers' shared understanding of the functional workings of the government under which they had lived. Reference to the British Constitution may shed particular light on those broad questions of power allocation that are not clearly answered by the text of the Constitution alone, for the British Constitution supplied the Framers with their contextual expectations about the manner in which sovereign powers should be allocated in a constitutional system of government.
By the late 18th century, it was well established under the British Constitution that the Crown had absolute authority to dispose as it saw fit of prisoners of war and other detainees. At the Battle of Agincourt in 1415, for example, King Henry V ordered the execution of a large number of French prisoners of war in retaliation for a French attack on part of the English baggage train. [5] Similarly, during the War of the Roses in 1471 it was understood to be the prerogative of King Edward IV to decide which Lancastrian prisoners of war should live and which would die. [6] Although the treatment of prisoners of war generally improved as time went on, the Crown's unilateral control of their handling remained undiminished. When the Spanish Armada was destroyed by a storm off the coast of Scotland in 1588, Queen Elizabeth and her Privy Council dictated every detail of the confinement of captured sailors, including the amount of the allowance to which they were entitled as prisoners of war. [7] The Privy Council also assumed responsibility for determining which captured soldiers were entitled to prisoner of war status, denying the legal classification to those sailors it determined had simply been shipwrecked on their way home to Spain. [8] During this and future periods, Parliament never sought to interfere with the executive's prerogatives regarding the disposition of prisoners of war.
The Crown's control of prisoners of war as a matter incident to military operations was also left untouched by the restructuring of the British Constitution during the civil wars of the mid-17th century. Queen Anne rejected a prisoner of war exchange cartel proposed by King Louis XIV of France in 1703, largely because she was personally insulted that Louis refused to recognize her as the legitimate heir to the English throne. [9] And during the Revolutionary War in America, the British field commanders, who ultimately were controlled by the King, took charge of handling POWs. General Howe, for example, established a Commissary General of Prisoners in 1776 to handle the many soldiers he had captured during his campaigns in New Jersey and New York, and he later determined that many of the soldiers should be held at sea in prison ships. [10] There was no doubt, under the British constitutional system in the 18th Century, that the executive's commander-in-chief power included the sole authority to control POWs. When drafting the Constitution in 1787, the Framers similarly would have understood the President's Commander-in-Chief and Chief Executive powers as encompassing the power to dispose of the liberty of prisoners of war. The Framers made no express allocation in the Constitution of the power to dispose of persons captured during military engagements; their silence on the point signals their intent to leave the power allocated to the Executive, as it was under the British Constitution.
2. Historical practice
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 § I of Art. II." Youngstown Sheet & Tube Co. V. Saxyer, 343 U.S. 579, 610-11 (1952) (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). 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). [11]
Accordingly, we must give great weight to the practice of the President and Congress in determining the scope of the President's authority to detain and transfer prisoners captured in war. In this case, the historical record unequivocally demonstrates that the President has exercised unchallenged and exclusive control over individuals captured during military operations since the time of the Founding. Presidents have established confinement conditions for prisoners of war, negotiated terms and conditions for the exchange of captured soldiers, promulgated rules requiring captured enemy personnel to perform productive labor, and, significantly, transferred prisoners of war to the custody and control of other foreign nations. With respect to each of these functions, Congress has never seriously questioned the President's authority. The history of prisoner of war policy strongly supports reading the Constitution as vesting in the President all of the traditional authority enjoyed by army commanders-in-chief to dispose of the liberty of captured individuals. Because of the novelty of this question and the lack of any direct guidance from the opinions of this Department or decisions by the federal judiciary, we review the relevant history here to demonstrate the depth of support for the conclusion that the President enjoys the unrestricted constitutional power to dispose of prisoners of war.
The Revolutionary War. The absence of a constitutionally recognized chief executive during the revolutionary period and the dominance of the Continental Congress in directing certain aspects of the Continental Army's military operations casts a cloud upon the utility of United States practices during the revolutionary era in discerning constitutional meaning. Nevertheless, the prisoner of war policies practiced by early American military forces indicate that the Founders recognized the power of the sovereign, consistent with contemporary European practices, to transfer prisoners of war to the custody and control of foreign nations. American naval forces that captured British prisoners at sea typically turned the prisoners over to French control. [12] On the home front, General George Washington established the living conditions of captured British soldiers who had fallen under his control. [13] Although not yet in the position of President as created by Article II of the Constitution, General Washington held the title of Commander in Chief of the Continental Army, and neither the Continental Congress (which itself was more of an executive branch than a legislature that could tax or legislate) nor the state assemblies questioned his authority to handle and control prisoners of war. In this respect, General Washington exercised his authority in line with the traditional Anglo-American understanding of the scope of the Commander-in-Chief power.
The Ouasi-War with France. As tensions between the United States and France intensified during the late 1790s, Congress passed a series of statutes pertaining to the disposition of French vessels captured during military engagements defending American shipping. [14] The first such statute merely authorized the President "to seize, take and bring into any port of the United States" French ships found to be "committing depredations" on vessels belonging to citizens of the United States. Act of May 28, 1798, ch. 48, 1 Stat. 561. Three subsequent statutes, however, also included provisions relating to the disposition of the crews and officers of captured enemy ships. [15] See Act of June 28,1798, ch. 62, §4, 1 Stat 574, 575; Act of July 9, 1798, ch. 68, § 8, 1 Star 578. 580; Act of Feb. 28, 1799, ch. 18, 1 Star 624.
The first statute relating to captured sailors provided that "it shall be lawful for the President of the United States, to cause the officers and crews of the vessels so captured... to be confined in any place of safety within the United States... and all marshals and other officers of the United States are hereby required to execute such orders as the President may issue for the said purpose." Act of June 28, 1798, 1 Stat. at 575. It appears that this statute was designed to serve two purposes. First, it was intended to send a clear message to France that her predations would no longer be tolerated, and that her countrymen would suffer the penalty of imprisonment if attacks on American shipping did not cease. [16] Second, the statute's language indicates that it was designed to instruct non-military law-enforcement personnel that it was lawful and indeed required for them to imprison captured Frenchmen on the President's instruction, without any allegation that the Frenchmen had committed domestic crimes. These dual purposes provide ample explanation for the structure of the statute's text, and we do not read the statute as expressing an opinion or intending to imply that the President would not have had the power to imprison the captured sailors in the statute's absence.
The second statute, enacted just two weeks later, provided that "all French persons... who shall be found acting on board any French armed vessel... shall be reported to the collector of the port in which they shall first arrive, and shall be delivered to the custody of the marshal, or of some civil or military officer of the United States... who shall take charge for their safe keeping and support, at the expense of the United States." Act of July 9, 1798, § 8, 1 Stat. at 580. That provision clearly was meant to apply only to Frenchmen captured by private parties, and not to Frenchmen who were captured by armed forces of the United States. Although the first provision of the statute related solely to actions taken by the President, see id. § 1, 1 Stat. at 578, the six intervening statutory sections authorized "private armed ships and vessels of the United States" to capture French marauders, id. § 2, 1 Stat. at 579, and further prescribed rules regulating such captures and the ensuing distribution of captured property, id. §§ 3-7, 1 Stat. at 579-80. The requirement that captured Frenchmen be turned over to a marshal or to "some civil or military officer of the United States" makes sense only as applied to private captures, as Frenchmen captured by United States forces would already have been in the custody of "military officer[s] of the United States." Id. § 8, 1 Stat. at 580. This statute, then, merely directed private citizens to turn captured Frenchmen over to the control of the President, but did not purport in any way to control the actions of the President once the prisoners were in his custody.
The third statute, which was passed half a year later, similarly imposed no requirements on the President. That statute provided that "the President... is authorized to exchange or send away from the United States to the dominion of France, as he may deem proper and expedient, all French citizens that have been or may be captured and brought into the United States... ." Act of Feb. 28, 1799, ch. 18, 1 Stat. 624. Any debates that this provision may have occasioned were not recorded in the Annals of Congress, and it is therefore difficult to place this statute within the context of the events that led to its passage. On its face, however, the statute appears to be designed to encourage the President to use captured Frenchmen as bargaining chips to secure the release of Americans being held prisoner in France. The statute provides no substantive standards, and expressly leaves all prisoner exchanges to the complete discretion of the President. Thus, we do not read the statute to imply that the President would have been without power to effect such exchanges absent congressional authorization.
The one statute from this time period that does appear to require the President to take certain actions was passed only a few days later. That statute provided that if the President received information that a United States citizen who was impressed into serving on a foreign vessel of war was put to death or subjected to corporal punishment after being captured by France, "it shall be lawful for the President of the United States, and he is hereby empowered and required to cause the most rigorous retaliation to be executed on any such citizen of the French Republic, as have been or hereafter may be captured in pursuance of any of the laws of the United States." See Act of March 3, 1799, ch. 45, 1 Stat. 743 (emphasis added). On its face, the statute seems to require the President to take retaliatory measures against captured Frenchmen in his custody, and thus might be read to imply that Congress was asserting that it had the authority to dictate prisoner of war policy. A careful examination of the legislative history of the statute, however, belies such a reading.
The statute was passed in response to a French arrêt ordering the execution of United States citizens found on captured war ships belonging to nations that were at war with France. As originally passed by the Senate and introduced into the House, the measure authorized and required retaliation against any Frenchmen that the President could get his hands on, including Frenchmen who were legally in the United States. The President would indeed have needed congressional authorization to effect such sweeping retaliatory measures. As the United States was not at war with France, and the United States citizens who were threatened by the arrêt were not working on vessels belonging to the United States or its citizens, the President could not have invoked the Commander-in-Chief power to support such unilateral retaliation on his own authority.
Only after it had been passed by the Senate and debated for several days in the House was the retaliation provision narrowed by limiting retaliation to captured Frenchmen who were already in the President's custody. Representatives Gallatin and Smith successfully argued that retaliation should be limited to those Frenchmen who had actually engaged in predation against the United States and been captured, and the amendment was agreed to immediately prior to the passage of the entire bill. 9 Annals of Cong. 3047 (March 3, 1799) (remarks of Mr. Gallatin); Id. at 3051 (March 3, 1799) (remarks of Mr. S. Smith). Although as Commander in Chief the President already enjoyed authority to retaliate against French prisoners who had fallen into his custody, the rest of the provision was not rewritten to conform with the last-minute amendment, and the word "required" remained in the statute as a vestige of its original construction. [17] Had Congress actually purported to require the President to retaliate against prisoners whom he held by virtue of his authority as Commander in Chief, the provision would have constituted an unconstitutional interference with presidential prerogatives. [18]
This contextual reading of the statute also indicates that the statute should not be understood to imply that the President could not have engaged in retaliation against captured enemy agents absent congressional authorization. As originally constructed, the bill authorized retaliation against Frenchmen who were legally within the territory of the United States, and over whom the President would have had no inherent authority to inflict death or corporal punishment. As has been noted, the President would indeed have required congressional authorization to retaliate against such Frenchmen. Congress seems not even to have realized that the amendment to the statute brought the issue of retaliation within the President's power as Commander in Chief, and thus did not think to amend the statute to remove the reference to authorization. Moreover, even if Congress had intentionally included the word "authorized" in the amended provision, absent evidence to the contrary we would read its inclusion as designed to encourage the President to take action, rather than as an expression of an opinion that the President had no inherent authority as Commander in Chief to engage in such retaliation.
The War of 1812. The Congress that presided over the War of 1812 provides the only other historical instance that we have been able to identify of direct congressional involvement in prisoner of war issues. On July 6, 1812, just three weeks after the U.S.'s declaration of war against Britain, the Twelfth Congress passed "An Act for the safe keeping and accommodation of prisoners of war." The Act authorized the President "to make such regulations and arrangements for the safe keeping, support and exchange of prisoners of war as he may deem expedient." Act of July 6, 1812, ch. 128, 2 Stat. 777. It also appropriated funds for the purpose of detaining prisoners of war. The statute, however, did not establish any substantive standards governing the disposition of prisoners, and it did not lay any claim to congressional authority in the area. Although the statute spoke in terms of "authoriz[ing]" the President to take action, it at best represented a recognition by Congress of powers that President Madison already enjoyed by virtue of his position as Commander in Chief and provided the funds for the exercise of his responsibilities. Indeed, we read the 1812 Act in the same manner as we have construed the War Powers Resolution, which also purports to "authorize the President to exercise his Commander- in-Chief authority. See, e.g., September 25 War Powers Memorandum. As the President possess the Commander-in-Chief and Executive powers alone, Congress cannot constitutionally restrict or regulate the President's decision to commence hostilities or to direct the military, once engaged. This would include not just battlefield tactics, but also the disposition of captured enemy combatants.
In Brown v. United States, Chief Justice Marshall observed in dicta that Congress's passage of the Act suggested that the President had no inherent authority to hold and detain captured enemy soldiers. 12 U.S. (8 Cranch) 110, 126 (1814) (noting that the Act "affords a strong implication that [the President) did not possess these powers by virtue of the declaration of war"). Brown was exclusively concerned with the President's authority to confiscate enemy property within the United States, however, a subject that is expressly reserved to Congress by Article I, Section 8, Clause 11 of the Constitution. [19] Marshall's offhand reference to the handling of prisoners of war was intended to provide an additional example of a war-related power that the President could not exercise without express statutory authorization. Marshall was unable, however, to cite any constitutional provision comparable to the Captures Clause of Article I, Section 8, Clause 11 that expressly delegates to Congress the power to make rules concerning captured persons. Indeed, there is no such comparable constitutional provision, and Marshall's comment in Brown cannot hold up under the weight of longstanding historical practice to the contrary. Despite the fact that the 1812 Act was repealed by Congress in 1817, see Act of March 3, 1817, ch. 34, 3 Stat. 358, Presidents have continued, with Congress's blessing - usually in the form of supporting appropriations [20] -- to exercise exclusive control over prisoner-of-war policy.
A second prisoner of war issue confronted by the Twelfth Congress indicates that Congress did not believe that the President required legislative authorization before determining the treatment of captured enemy combatants. From the very beginning of the war, the United States protested the treatment that the British accorded captured American soldiers. To induce the British to give them better treatment, a bill was introduced in Coy= in 1813 to vest the President "with [the] power[ of retaliation [against British POWs]." [21] The bill was initially rejected by the House in November of 1812, and the Annals of Congress report that "[t]he objections to the bill were not to the principle of retaliation, but arose from the opinion that such a power already existed, from usage and from the nature of things, and was inseparable from sovereignty." [22] The Act was subsequently reconsidered and enacted in the face of a growing furor over British atrocities, see Act of March 3, 1813, ch. 61, 2 Stat. 829, but documents entered without rebuke or challenge to his authority already instituted several retaliatory measures in order to protect captured American soldiers [23] Congress never asserted that it possessed any constitutional authority to regulate prisoner treatment, nor did it challenge the President's Commander in Chief and executive powers in this area. Rather, Congress merely sought to encourage the President to take a more aggressive approach toward Britain.
The Mexican War. During the Mexican War, the cost of maintaining captured Mexican soldiers was deemed to be too high. President James K. Polk therefore approved a policy in 1846 whereby captured Mexican soldiers would be released on parole and permitted to return to their homes on the condition that they would not reengage in hostilities [24] President Polk hoped that this policy not only would allow the army to prosecute the attack on Mexico without having to devote an undue number of troops to guard duty, but also that the leniency of the policy would curry favor with Mexican citizens and encourage them to put pressure on their government to bring about a quick settlement to the war. President Polk later modified the parole policy in 1847, ordering that captured Mexican officers be detained with an eye toward exchanging them for captured American soldiers being held by the Mexicans. [25] At no time during the course of the war did anyone in Congress challenge the President's constitutional authority to regulate and establish prisoner of war policy on behalf of the United States.
The Civil War. During the Civil War, President Abraham Lincoln was faced with the task of managing thousands of captured Confederate soldiers. President Lincoln created the post of Commissary General of Prisoners in 1861 to direct the disposition of POWs [26] Although the Commissary General's office was originally placed under the jurisdiction of the Quartermaster General, that arrangement was later changed in 1862, and the office thereafter became subject only to the orders of the War Department. [27] As can be seen from this command structure, POWs were throughout the Civil War subject to the exclusive control of the President, exercised under the auspices of the War Department.
President Lincoln's War Department made various uses of the POWs as the war progressed. In July of 1862 the administration entered into an agreement with Confederate authorities setting forth procedures for the exchange of captured soldiers. [28] Later, in 1863 and 1864, the President approved a proposed War Department plan to recruit captured Confederate soldiers who agreed to take an oath of loyalty to serve in the Union army. During the same time period, a handful of Confederate POWs held in Illinois and New York were ordered to perform labor on various minor construction projects, including water works and drainage ditches. [29] Finally, after the surrender of the Confederate army at Appomatox on April 9, 1865, explicit terms and conditions were established for the release of captured soldiers who were still being held in confinement. [30]
A spirited debate in the Senate during January of 1865 regarding a measure urging the President to retaliate against captured Confederate soldiers strongly demonstrates Congress's view that the ultimate authority to decide prisoner of war policy resided in the President by virtue of his constitutional position as Commander in Chief--In the face of mounting evidence that the Confederacy was starving and otherwise mistreating captured Union soldiers, Senator Wade of Ohio moved the adoption of S.R. No. 97, a joint resolution urging President Lincoln to take retaliatory measures. [31] Significantly, rather than speaking in terms of "authorizing" or "commanding" the President to take action, the resolution declared that "in the judgment of Congress, it has become justifiable and necessary that the President should, in order to prevent the continuance and recurrence of such barbarities...resort at once to measures of retaliation." [32]
To emphasize congressional recognition of the President's prerogative in this area, the resolution explicitly stated that "Congress do not, however, intend by this resolution to limit or restrict the power of the President to the modes or principles of retaliation herein mentioned, but only to advise a resort to them as demanded by the occasion." [33] Indeed, during the debates over the resolution, several Senators expressly remarked that the President already had inherent authority to effect retaliatory measures by virtue of his position as the Chief Executive and the Commander in Chief of the armed forces. Senator McDougall forcefully expressed this sentiment in a floor speech, stating that:
MEMO __
U.S. Department of Justice
Office of Legal Counsel
Office of the Assistant Attorney General
Washington, D.C. 20530
March 13, 2002
Memorandum for William J. Haynes, II
General Counsel, Department of Defense
Re: The President's power as Commander in Chief to transfer captured terrorists to the control and custody of foreign nations
You have asked for our Office's views on the laws applicable to the transfer of members of the Taliban militia, al Qaeda, or other terrorist organizations, who have come under the control of the United States armed forces, to other countries. We conclude that the President has plenary constitutional authority, as the Commander in Chief, to transfer such individuals who are captured and held outside the United States to the control of another country. Individuals who are detained within the United States, however, may be subject to a more complicated set of rules established by both treaty and statute.
Part I of this memorandum discusses the President's constitutional authority, supported by two centuries of historical practice, to detain and transfer enemy prisoners captured in wartime. It reviews the two relevant treaties that regulate transfer -- the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316 ("GPW"), and the Torture Convention and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Apr. 18, 1987, 23 I.L.M. 1027 (entered into force June 26, 1987) (the "Torture Convention" or the "Convention"), -- and it explains that these conventions do not apply to the factual situation posed by the transfer of al Qaeda or Taliban prisoners to third countries. As you have requested, we also survey in Part II the domestic legal rules governing extradition, and in Part III the domestic standards that govern removal under the immigration laws.
We conclude that the President has full discretion to transfer al Qaeda and Taliban prisoners captured overseas and detained outside the territorial jurisdiction of the United States to third countries. GPW does not restrict the President's discretion because the President has determined that the al Qaeda or Taliban detainees are not legally entitled to prisoner of war ("POWs") status within the meaning of the Conventions. The Torture Convention poses no obstacle to transfer because the treaty does not apply extraterritorially. As removal applies only to the transfer of individuals already within the territorial jurisdiction of the United States, and as extradition is rarely if ever applied to individuals held abroad, those methods of transfer do not apply to the detainees held either in Afghanistan or at the U.S. Naval Base at Guantanamo Bay, Cuba.
I. THE COMMANDER-IN-CHIEF POWER
Throughout history, army commanders-in chief have exercised the power to "dispose of the liberty" of prisoners captured during military engagements. This power has traditionally included the right to transfer such prisoners to the custody of third parties, including neutral countries and allied belligerents. As a matter of constitutional text and structure, the location of the Commander-in-Chief power in Article 11 of the Constitution makes clear that this function, historically held by military commanders-in chief, lies within the discretion of the executive branch. Our constitutional history and practice confirms this: the President has since the Founding era exercised exclusive and virtually unfettered control over the disposition of enemy soldiers and agents captured in time of war. Indeed, on several occasions throughout American history, the President, either in furtherance of particular diplomatic or military objectives or merely for the sake of convenience, has transferred POWs from the custody and control of the United States to the custody and control of other foreign nations.
Those treaties that purport to govern the transfer of detained individuals generally do not apply in the context of the current war against al Qaeda and other terrorist groups. Even if those treaties were applicable to the present conflict, however, they do not impose significant restrictions on the operation of the President's Commander-in-Chief authority. The GPW imposes some limitations on the transfer of United States-held POWs to other nations. These limitations, however, apply only to individuals who are legally entitled to POW status, and leave the President considerable discretion as to when such transfers are permissible. Further, as this Office has explained elsewhere, the members of non-state terrorist organizations such as al Qaeda are not entitled to POW status as a matter of law because the GPW's protections for POWs apply only to international armed conflicts between state parties. See Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes, II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Application of Treaties and Laws to at Qaeda and Taliban Detainees at 9-10 (Jan. 22, 2002) ("GPW Memo"). Therefore, there are no GPW constraints on the President's ability to transfer al Qaeda prisoners to third countries. The Torture Convention also imposes limitations on transfer, but those restrictions have no extraterritorial effect and thus are not applicable to prisoners who are captured and detained abroad. [1]
A. Presidential Authority Under The Constitution
This Part discusses the sources of the President's constitutional authority to transfer military detainees to third countries. Throughout United States history, the Constitution's vesting of the Commander-in-Chief and Chief Executive powers in the President has been understood to provide this affirmative legal authority. These grants have long been understood to include the authority to "dispose of the liberty" of enemy soldiers and agents captured in time of war. This view of the President's war powers is supported by the Constitution's text and a comprehensive understanding of its structural allocation of powers, but also by an unbroken chain of historical practice dating back to the Founding era. In tandem, these factors conclusively demonstrate that the Commander-in-Chief Clause constitutes an independent grant of substantive authority to engage in the detention and transfer of prisoners captured in armed conflicts.
1. Constitutional text and structure
The text, structure, and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to control and conduct military operations engaged in by the United States. 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. He is vested broadly with all of "[t]he executive Power" and the duty to execute the laws. Id. art. II, § 1.
By their terms, these provisions vest full control of the military operations of the United States in 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, 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), and that the authority conferred includes all those powers not expressly delegated by the Constitution to Congress that have traditionally been exercised by commanders-in chief of armed forces.
Moreover, as the courts have consistently recognized, the President's discretion in exercising the Commander-in-Chief power is complete, and his military decisions are not subject to challenge in the courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court faced the question whether the President "in fulfilling his duties as Commander in Chief" could treat the rebellious States as belligerents by instituting a blockade. The Court concluded that this 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." [2]
The Constitution's textual commitment to the President of control over the minutiae and the grand strategy of military operations alike is reinforced by analysis of the Constitution's 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 472 (Alexander Hamilton) (Jacob E. Cooke ed., 1982 reprint) (1961). 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 make command decisions affecting operations in the field with a speed and energy that is far superior to any other branch. As Hamilton noted, "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 500 (Alexander Hamilton).
The handling and disposition of individuals captured during military operations requires command-type decisions and the swift exercise of judgment that can only be made by "a single hand." The strength of enemy forces, the morale of our troops, the gathering of intelligence about the dispositions of the enemy, the construction of infrastructure that is crucial to military operations, and the treatment of captured United States servicemen may all be affected by the policies pursued in this arena. Quick, decisive determinations must often be made in the face of the shifting contingencies of military fortunes. [3] This is the essence of executive action.
Second, the constitutional structure requires that any ambiguity in the allocation of a power that is executive in nature must be resolved in favor of the executive branch. As this Office has recently explained, see Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sept. 25, 2001) ("September 25 War Powers Memorandum"), 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. 1, § 1. This difference in language indicates that Congress's legislative powers are limited to the list enumerated in Article 1, Section 8, while the President's powers include inherent executive powers that are unenumerated in the Constitution. The unification of executive power in Article II requires that unenumerated powers that can fairly be described as "executive" in nature belong to the President, except where the Constitution expressly vests the power in Congress. For example, as Commander in Chief, the President would ordinarily have plenary power to provide rules for the armed forces, but Article 1, Section 8, Clause 14 excepts this power from the executive by expressly committing it to Congress. U.S. Const. Art. 1, sec. 8, cl. 14 ("The Congress shall have Power... [t]o make Rules for the Government and Regulation of the land and naval Forces"). Even if the Constitution's entrustment of the Commander-in-Chief power to the President did not bestow upon him the authority to make unilateral determinations regarding the disposition of captured enemies, the President would nevertheless enjoy such a power by virtue of the broad sweep of the Vesting Clause. Thus, the power to dispose of the liberty of individuals captured and brought under the control of United States armed forces during military operations remains in the hands of the President alone unless the Constitution specifically commits the power to Congress.
The debates over the Constitution confirm that the Framers understood the Commander- in-Chief power to include all powers related to the conduct of war, with the exception only of those few powers that were expressly carved out and delegated to Congress. During the debates in the Federal Convention, for example, a clause that would have given Congress the power to "make" war was amended to give Congress the power only to "declare" it, in part because it was understood that as the Commander in Chief the President should enjoy the sole authority to conduct warfare. [4] The treatment of captured enemy soldiers is but one of the many facets of the conduct of war, entrusted by the Constitution in plenary fashion to the President by virtue of the Commander-in-Chief Clause. Moreover, it is an area in which the President appears to enjoy exclusive authority, as the power to handle captured enemy soldiers is not reserved by the Constitution in whole or in part to any other branch of the government.
It might be argued that Article I, Section 8, Clause 11, which grants Congress the power to "make Rules concerning Captures on Land and Water," addresses captured enemy soldiers. That provision has never been applied by the courts or by Congress to captured persons, however, and appears always to have been understood as pertaining to captured property only. Article IX of the Articles of Confederation, from which the provision is derived, more clearly indicated that the power extended only to property, stating that Congress would have the power of establishing rules for deciding, in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated." Articles of Confederation, art. 1X, reprinted in Encyclopedia of the American Constitution app. 2, at 2094 (Leonard W. Levy ed., 1986). The Articles of Confederation provision clearly did not apply to captured enemy soldiers, as persons can neither be "divided" nor "appropriated." Moreover, the term capture, which is used both in the Articles of Confederation and in the Constitution, is defined by international law as "[t]he taking of property by one belligerent from another or from an offending neutral." 1 Bouvier's Law Dictionary 422 (Rawle's 3d rev. 1914) (emphasis added). Thus, in his exhaustive commentaries on the Constitution, Justice Story noted that Article I, Section 8, Clause 11 confers on Congress the power to "authorize the seizure of and condemnation of the property of the enemy within, or without the territory of the United States," yet he made no mention of any authority being vested in Congress over captured persons. Joseph Story, Commentaries on the Constitution of the United States § 1172, at 64 (reprinted 1991) (1833). This contextual understanding of the text of Article I, Section 8, Clause 11, buttressed by the absence in the historical record of any invocations of the clause by Congress or the courts in support of legislation applying to captured persons, leaves no doubt that Congress's power "to make Rules concerning Captures on Land or Water" applies only to captured property.
Article I, Section 8, Clause 12, which vests Congress with the authority to "raise and support Armies," and Clause 14, which vests it with power to "make Rules for the Government and Regulation of the land and naval Forces," might also be thought to confer on Congress the power to promulgate prisoner of war policy. Using its funding power, Congress might attempt to place legislative riders on military appropriations that would seek to require certain treatment of prisoners of war. While this Office has concluded elsewhere that Congress cannot use the appropriations power to interfere with areas of plenary presidential power, see Memorandum for Abner J. Mikva, Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Bill to Relocate United States Embassy From Tel Aviv to Jerusalem (May 16, 1995), Congress has not done so here, and so we need not reach that question. Congress also could attempt to use its authority to make rules for regulation of the military to establish standards for prisoner detention and transfer. While we believe that Congress's power on this point is limited to the discipline of U.S. troops, and not to issues such as the rules of engagement and treatment concerning enemy combatants, we have no need to directly address the question because Congress has not enacted any such statute. In fact, Congress's historical silence, as we will explain below, demonstrates that Congress itself has not understood its powers to reach so far into areas of presidential competence.
The historical context in which the Constitution was ratified supplies additional support for our view that the constitutional structure allocates to the President the plenary power to dispose of the liberty of military detainees. In particular, our understanding of the Constitution's allocation of powers between Congress and the President is informed by the British Constitution's allocation of powers between Parliament and the Crown. The Framers had lived under the British Constitution as English colonists, and in drafting their own Constitution they borrowed heavily from the legal and political concepts that formed the foundation principles of British constitutional government. Significant departures from the framework of the British government were explicitly spelled out in the Constitution's text, with the gaps left to be filled in by the Framers' shared understanding of the functional workings of the government under which they had lived. Reference to the British Constitution may shed particular light on those broad questions of power allocation that are not clearly answered by the text of the Constitution alone, for the British Constitution supplied the Framers with their contextual expectations about the manner in which sovereign powers should be allocated in a constitutional system of government.
By the late 18th century, it was well established under the British Constitution that the Crown had absolute authority to dispose as it saw fit of prisoners of war and other detainees. At the Battle of Agincourt in 1415, for example, King Henry V ordered the execution of a large number of French prisoners of war in retaliation for a French attack on part of the English baggage train. [5] Similarly, during the War of the Roses in 1471 it was understood to be the prerogative of King Edward IV to decide which Lancastrian prisoners of war should live and which would die. [6] Although the treatment of prisoners of war generally improved as time went on, the Crown's unilateral control of their handling remained undiminished. When the Spanish Armada was destroyed by a storm off the coast of Scotland in 1588, Queen Elizabeth and her Privy Council dictated every detail of the confinement of captured sailors, including the amount of the allowance to which they were entitled as prisoners of war. [7] The Privy Council also assumed responsibility for determining which captured soldiers were entitled to prisoner of war status, denying the legal classification to those sailors it determined had simply been shipwrecked on their way home to Spain. [8] During this and future periods, Parliament never sought to interfere with the executive's prerogatives regarding the disposition of prisoners of war.
The Crown's control of prisoners of war as a matter incident to military operations was also left untouched by the restructuring of the British Constitution during the civil wars of the mid-17th century. Queen Anne rejected a prisoner of war exchange cartel proposed by King Louis XIV of France in 1703, largely because she was personally insulted that Louis refused to recognize her as the legitimate heir to the English throne. [9] And during the Revolutionary War in America, the British field commanders, who ultimately were controlled by the King, took charge of handling POWs. General Howe, for example, established a Commissary General of Prisoners in 1776 to handle the many soldiers he had captured during his campaigns in New Jersey and New York, and he later determined that many of the soldiers should be held at sea in prison ships. [10] There was no doubt, under the British constitutional system in the 18th Century, that the executive's commander-in-chief power included the sole authority to control POWs. When drafting the Constitution in 1787, the Framers similarly would have understood the President's Commander-in-Chief and Chief Executive powers as encompassing the power to dispose of the liberty of prisoners of war. The Framers made no express allocation in the Constitution of the power to dispose of persons captured during military engagements; their silence on the point signals their intent to leave the power allocated to the Executive, as it was under the British Constitution.
2. Historical practice
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 § I of Art. II." Youngstown Sheet & Tube Co. V. Saxyer, 343 U.S. 579, 610-11 (1952) (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). 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). [11]
Accordingly, we must give great weight to the practice of the President and Congress in determining the scope of the President's authority to detain and transfer prisoners captured in war. In this case, the historical record unequivocally demonstrates that the President has exercised unchallenged and exclusive control over individuals captured during military operations since the time of the Founding. Presidents have established confinement conditions for prisoners of war, negotiated terms and conditions for the exchange of captured soldiers, promulgated rules requiring captured enemy personnel to perform productive labor, and, significantly, transferred prisoners of war to the custody and control of other foreign nations. With respect to each of these functions, Congress has never seriously questioned the President's authority. The history of prisoner of war policy strongly supports reading the Constitution as vesting in the President all of the traditional authority enjoyed by army commanders-in-chief to dispose of the liberty of captured individuals. Because of the novelty of this question and the lack of any direct guidance from the opinions of this Department or decisions by the federal judiciary, we review the relevant history here to demonstrate the depth of support for the conclusion that the President enjoys the unrestricted constitutional power to dispose of prisoners of war.
The Revolutionary War. The absence of a constitutionally recognized chief executive during the revolutionary period and the dominance of the Continental Congress in directing certain aspects of the Continental Army's military operations casts a cloud upon the utility of United States practices during the revolutionary era in discerning constitutional meaning. Nevertheless, the prisoner of war policies practiced by early American military forces indicate that the Founders recognized the power of the sovereign, consistent with contemporary European practices, to transfer prisoners of war to the custody and control of foreign nations. American naval forces that captured British prisoners at sea typically turned the prisoners over to French control. [12] On the home front, General George Washington established the living conditions of captured British soldiers who had fallen under his control. [13] Although not yet in the position of President as created by Article II of the Constitution, General Washington held the title of Commander in Chief of the Continental Army, and neither the Continental Congress (which itself was more of an executive branch than a legislature that could tax or legislate) nor the state assemblies questioned his authority to handle and control prisoners of war. In this respect, General Washington exercised his authority in line with the traditional Anglo-American understanding of the scope of the Commander-in-Chief power.
The Ouasi-War with France. As tensions between the United States and France intensified during the late 1790s, Congress passed a series of statutes pertaining to the disposition of French vessels captured during military engagements defending American shipping. [14] The first such statute merely authorized the President "to seize, take and bring into any port of the United States" French ships found to be "committing depredations" on vessels belonging to citizens of the United States. Act of May 28, 1798, ch. 48, 1 Stat. 561. Three subsequent statutes, however, also included provisions relating to the disposition of the crews and officers of captured enemy ships. [15] See Act of June 28,1798, ch. 62, §4, 1 Stat 574, 575; Act of July 9, 1798, ch. 68, § 8, 1 Star 578. 580; Act of Feb. 28, 1799, ch. 18, 1 Star 624.
The first statute relating to captured sailors provided that "it shall be lawful for the President of the United States, to cause the officers and crews of the vessels so captured... to be confined in any place of safety within the United States... and all marshals and other officers of the United States are hereby required to execute such orders as the President may issue for the said purpose." Act of June 28, 1798, 1 Stat. at 575. It appears that this statute was designed to serve two purposes. First, it was intended to send a clear message to France that her predations would no longer be tolerated, and that her countrymen would suffer the penalty of imprisonment if attacks on American shipping did not cease. [16] Second, the statute's language indicates that it was designed to instruct non-military law-enforcement personnel that it was lawful and indeed required for them to imprison captured Frenchmen on the President's instruction, without any allegation that the Frenchmen had committed domestic crimes. These dual purposes provide ample explanation for the structure of the statute's text, and we do not read the statute as expressing an opinion or intending to imply that the President would not have had the power to imprison the captured sailors in the statute's absence.
The second statute, enacted just two weeks later, provided that "all French persons... who shall be found acting on board any French armed vessel... shall be reported to the collector of the port in which they shall first arrive, and shall be delivered to the custody of the marshal, or of some civil or military officer of the United States... who shall take charge for their safe keeping and support, at the expense of the United States." Act of July 9, 1798, § 8, 1 Stat. at 580. That provision clearly was meant to apply only to Frenchmen captured by private parties, and not to Frenchmen who were captured by armed forces of the United States. Although the first provision of the statute related solely to actions taken by the President, see id. § 1, 1 Stat. at 578, the six intervening statutory sections authorized "private armed ships and vessels of the United States" to capture French marauders, id. § 2, 1 Stat. at 579, and further prescribed rules regulating such captures and the ensuing distribution of captured property, id. §§ 3-7, 1 Stat. at 579-80. The requirement that captured Frenchmen be turned over to a marshal or to "some civil or military officer of the United States" makes sense only as applied to private captures, as Frenchmen captured by United States forces would already have been in the custody of "military officer[s] of the United States." Id. § 8, 1 Stat. at 580. This statute, then, merely directed private citizens to turn captured Frenchmen over to the control of the President, but did not purport in any way to control the actions of the President once the prisoners were in his custody.
The third statute, which was passed half a year later, similarly imposed no requirements on the President. That statute provided that "the President... is authorized to exchange or send away from the United States to the dominion of France, as he may deem proper and expedient, all French citizens that have been or may be captured and brought into the United States... ." Act of Feb. 28, 1799, ch. 18, 1 Stat. 624. Any debates that this provision may have occasioned were not recorded in the Annals of Congress, and it is therefore difficult to place this statute within the context of the events that led to its passage. On its face, however, the statute appears to be designed to encourage the President to use captured Frenchmen as bargaining chips to secure the release of Americans being held prisoner in France. The statute provides no substantive standards, and expressly leaves all prisoner exchanges to the complete discretion of the President. Thus, we do not read the statute to imply that the President would have been without power to effect such exchanges absent congressional authorization.
The one statute from this time period that does appear to require the President to take certain actions was passed only a few days later. That statute provided that if the President received information that a United States citizen who was impressed into serving on a foreign vessel of war was put to death or subjected to corporal punishment after being captured by France, "it shall be lawful for the President of the United States, and he is hereby empowered and required to cause the most rigorous retaliation to be executed on any such citizen of the French Republic, as have been or hereafter may be captured in pursuance of any of the laws of the United States." See Act of March 3, 1799, ch. 45, 1 Stat. 743 (emphasis added). On its face, the statute seems to require the President to take retaliatory measures against captured Frenchmen in his custody, and thus might be read to imply that Congress was asserting that it had the authority to dictate prisoner of war policy. A careful examination of the legislative history of the statute, however, belies such a reading.
The statute was passed in response to a French arrêt ordering the execution of United States citizens found on captured war ships belonging to nations that were at war with France. As originally passed by the Senate and introduced into the House, the measure authorized and required retaliation against any Frenchmen that the President could get his hands on, including Frenchmen who were legally in the United States. The President would indeed have needed congressional authorization to effect such sweeping retaliatory measures. As the United States was not at war with France, and the United States citizens who were threatened by the arrêt were not working on vessels belonging to the United States or its citizens, the President could not have invoked the Commander-in-Chief power to support such unilateral retaliation on his own authority.
Only after it had been passed by the Senate and debated for several days in the House was the retaliation provision narrowed by limiting retaliation to captured Frenchmen who were already in the President's custody. Representatives Gallatin and Smith successfully argued that retaliation should be limited to those Frenchmen who had actually engaged in predation against the United States and been captured, and the amendment was agreed to immediately prior to the passage of the entire bill. 9 Annals of Cong. 3047 (March 3, 1799) (remarks of Mr. Gallatin); Id. at 3051 (March 3, 1799) (remarks of Mr. S. Smith). Although as Commander in Chief the President already enjoyed authority to retaliate against French prisoners who had fallen into his custody, the rest of the provision was not rewritten to conform with the last-minute amendment, and the word "required" remained in the statute as a vestige of its original construction. [17] Had Congress actually purported to require the President to retaliate against prisoners whom he held by virtue of his authority as Commander in Chief, the provision would have constituted an unconstitutional interference with presidential prerogatives. [18]
This contextual reading of the statute also indicates that the statute should not be understood to imply that the President could not have engaged in retaliation against captured enemy agents absent congressional authorization. As originally constructed, the bill authorized retaliation against Frenchmen who were legally within the territory of the United States, and over whom the President would have had no inherent authority to inflict death or corporal punishment. As has been noted, the President would indeed have required congressional authorization to retaliate against such Frenchmen. Congress seems not even to have realized that the amendment to the statute brought the issue of retaliation within the President's power as Commander in Chief, and thus did not think to amend the statute to remove the reference to authorization. Moreover, even if Congress had intentionally included the word "authorized" in the amended provision, absent evidence to the contrary we would read its inclusion as designed to encourage the President to take action, rather than as an expression of an opinion that the President had no inherent authority as Commander in Chief to engage in such retaliation.
The War of 1812. The Congress that presided over the War of 1812 provides the only other historical instance that we have been able to identify of direct congressional involvement in prisoner of war issues. On July 6, 1812, just three weeks after the U.S.'s declaration of war against Britain, the Twelfth Congress passed "An Act for the safe keeping and accommodation of prisoners of war." The Act authorized the President "to make such regulations and arrangements for the safe keeping, support and exchange of prisoners of war as he may deem expedient." Act of July 6, 1812, ch. 128, 2 Stat. 777. It also appropriated funds for the purpose of detaining prisoners of war. The statute, however, did not establish any substantive standards governing the disposition of prisoners, and it did not lay any claim to congressional authority in the area. Although the statute spoke in terms of "authoriz[ing]" the President to take action, it at best represented a recognition by Congress of powers that President Madison already enjoyed by virtue of his position as Commander in Chief and provided the funds for the exercise of his responsibilities. Indeed, we read the 1812 Act in the same manner as we have construed the War Powers Resolution, which also purports to "authorize the President to exercise his Commander- in-Chief authority. See, e.g., September 25 War Powers Memorandum. As the President possess the Commander-in-Chief and Executive powers alone, Congress cannot constitutionally restrict or regulate the President's decision to commence hostilities or to direct the military, once engaged. This would include not just battlefield tactics, but also the disposition of captured enemy combatants.
In Brown v. United States, Chief Justice Marshall observed in dicta that Congress's passage of the Act suggested that the President had no inherent authority to hold and detain captured enemy soldiers. 12 U.S. (8 Cranch) 110, 126 (1814) (noting that the Act "affords a strong implication that [the President) did not possess these powers by virtue of the declaration of war"). Brown was exclusively concerned with the President's authority to confiscate enemy property within the United States, however, a subject that is expressly reserved to Congress by Article I, Section 8, Clause 11 of the Constitution. [19] Marshall's offhand reference to the handling of prisoners of war was intended to provide an additional example of a war-related power that the President could not exercise without express statutory authorization. Marshall was unable, however, to cite any constitutional provision comparable to the Captures Clause of Article I, Section 8, Clause 11 that expressly delegates to Congress the power to make rules concerning captured persons. Indeed, there is no such comparable constitutional provision, and Marshall's comment in Brown cannot hold up under the weight of longstanding historical practice to the contrary. Despite the fact that the 1812 Act was repealed by Congress in 1817, see Act of March 3, 1817, ch. 34, 3 Stat. 358, Presidents have continued, with Congress's blessing - usually in the form of supporting appropriations [20] -- to exercise exclusive control over prisoner-of-war policy.
A second prisoner of war issue confronted by the Twelfth Congress indicates that Congress did not believe that the President required legislative authorization before determining the treatment of captured enemy combatants. From the very beginning of the war, the United States protested the treatment that the British accorded captured American soldiers. To induce the British to give them better treatment, a bill was introduced in Coy= in 1813 to vest the President "with [the] power[ of retaliation [against British POWs]." [21] The bill was initially rejected by the House in November of 1812, and the Annals of Congress report that "[t]he objections to the bill were not to the principle of retaliation, but arose from the opinion that such a power already existed, from usage and from the nature of things, and was inseparable from sovereignty." [22] The Act was subsequently reconsidered and enacted in the face of a growing furor over British atrocities, see Act of March 3, 1813, ch. 61, 2 Stat. 829, but documents entered without rebuke or challenge to his authority already instituted several retaliatory measures in order to protect captured American soldiers [23] Congress never asserted that it possessed any constitutional authority to regulate prisoner treatment, nor did it challenge the President's Commander in Chief and executive powers in this area. Rather, Congress merely sought to encourage the President to take a more aggressive approach toward Britain.
The Mexican War. During the Mexican War, the cost of maintaining captured Mexican soldiers was deemed to be too high. President James K. Polk therefore approved a policy in 1846 whereby captured Mexican soldiers would be released on parole and permitted to return to their homes on the condition that they would not reengage in hostilities [24] President Polk hoped that this policy not only would allow the army to prosecute the attack on Mexico without having to devote an undue number of troops to guard duty, but also that the leniency of the policy would curry favor with Mexican citizens and encourage them to put pressure on their government to bring about a quick settlement to the war. President Polk later modified the parole policy in 1847, ordering that captured Mexican officers be detained with an eye toward exchanging them for captured American soldiers being held by the Mexicans. [25] At no time during the course of the war did anyone in Congress challenge the President's constitutional authority to regulate and establish prisoner of war policy on behalf of the United States.
The Civil War. During the Civil War, President Abraham Lincoln was faced with the task of managing thousands of captured Confederate soldiers. President Lincoln created the post of Commissary General of Prisoners in 1861 to direct the disposition of POWs [26] Although the Commissary General's office was originally placed under the jurisdiction of the Quartermaster General, that arrangement was later changed in 1862, and the office thereafter became subject only to the orders of the War Department. [27] As can be seen from this command structure, POWs were throughout the Civil War subject to the exclusive control of the President, exercised under the auspices of the War Department.
President Lincoln's War Department made various uses of the POWs as the war progressed. In July of 1862 the administration entered into an agreement with Confederate authorities setting forth procedures for the exchange of captured soldiers. [28] Later, in 1863 and 1864, the President approved a proposed War Department plan to recruit captured Confederate soldiers who agreed to take an oath of loyalty to serve in the Union army. During the same time period, a handful of Confederate POWs held in Illinois and New York were ordered to perform labor on various minor construction projects, including water works and drainage ditches. [29] Finally, after the surrender of the Confederate army at Appomatox on April 9, 1865, explicit terms and conditions were established for the release of captured soldiers who were still being held in confinement. [30]
A spirited debate in the Senate during January of 1865 regarding a measure urging the President to retaliate against captured Confederate soldiers strongly demonstrates Congress's view that the ultimate authority to decide prisoner of war policy resided in the President by virtue of his constitutional position as Commander in Chief--In the face of mounting evidence that the Confederacy was starving and otherwise mistreating captured Union soldiers, Senator Wade of Ohio moved the adoption of S.R. No. 97, a joint resolution urging President Lincoln to take retaliatory measures. [31] Significantly, rather than speaking in terms of "authorizing" or "commanding" the President to take action, the resolution declared that "in the judgment of Congress, it has become justifiable and necessary that the President should, in order to prevent the continuance and recurrence of such barbarities...resort at once to measures of retaliation." [32]
To emphasize congressional recognition of the President's prerogative in this area, the resolution explicitly stated that "Congress do not, however, intend by this resolution to limit or restrict the power of the President to the modes or principles of retaliation herein mentioned, but only to advise a resort to them as demanded by the occasion." [33] Indeed, during the debates over the resolution, several Senators expressly remarked that the President already had inherent authority to effect retaliatory measures by virtue of his position as the Chief Executive and the Commander in Chief of the armed forces. Senator McDougall forcefully expressed this sentiment in a floor speech, stating that:
we have been for a week talking about a thing that does not belong to the... Senate or House of Representatives, but belongs to the province of the Executive, and undertaking to give advice to the President of the United States, who has charge of this business, and whose particular duty it is to see that he understand it, and that he executes his office in a proper manner ... . I vote against this proposition upon the ground that it has no business either in this Hall or in the other Hall of Congress, but belongs to a department of the Government which has full authority over it. [34]