Biographical Sketches
Ashcroft, John
Attorney General, U.S. Department of Justice
Ashcroft became U.S. Attorney General in January 2001. Prior to that, he served as Attorney General of Missouri for two terms and as Governor of Missouri from 1985 through 1993. He was elected to the U.S. Senate in 1994 and represented the state of Missouri there until the end of 2000.
Bybee, Jay S.
Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice
Bybee was appointed to the position of Assistant Attorney General by President George W. Bush in 2001. He joined the Department of Justice in 1984, where he worked in the Office of Legal Policy and the Appellate Staff of the Civil Division. From 1989 to 1991, he served in the White House as Associate Counsel to the President. From 1991 until his appointment in 2001, he taught law at Louisiana State University and the University of Nevada, Las Vegas.
Church Albert T. III, (Vice Admiral)
Director of the Navy Staff
Prior to serving as Director of the Navy Staff, Vice Admiral Church had two Director-level positions in the Navy. From July 1998 until March 2003, he served as both Director, Office of Budget in the Office of the Assistant Secretary of the Navy and Director, Fiscal Management Division, in the Office of the Chief of Naval Operations.
Delahunty, Robert J.
Associate Professor of Law, University of St. Thomas, Former Deputy General Counsel, White House Office of Homeland Security
Delahunty served as the Deputy General Counsel at the White House Office of Homeland Security from 2002 to 2003. He joined the U.S. Department of Justice in 1986, where he began working for the Office of Legal Counsel in 1989. He spent much of his legal career in the Office of Legal Counsel and in 1992, he was appointed Special Counsel in that department.
Dunlavey, Michael E. (Major General)
Former Operational Commander, Guantanamo Bay, Cuba
A career military man, Major General Dunlavey was made Commander of Terror Suspect Operations at Guantanamo Bay, Cuba, in 1997. Prior to that position, he served as Assistant Deputy Chief of Staff for Intelligence in the Office of the Deputy Chief of Staff for Intelligence.
Fay, George R. (Brigadier General)
Commanding General, U.S. Army Intelligence and Security Command (INSCOM)
A career military man, Brigadier General Fay became the INSCOM Acting Commander in July 2003. Prior to this position, he served as the Deputy Commanding General of INSCOM, a position he assumed in October 1999.
Flanigan, Timothy
Former Deputy White House Counsel
Flanigan is currently serving as the General Counsel for Corporate and International Law at Tyco, International. Prior to this, he was Deputy White House Counsel and a Deputy Assistant to President George W. Bush. Mr. Flanigan was a partner in the law firm White & Case and had previously served as Assistant Attorney General for the Department of Justice’s Office of the Legal Counsel during the administration of the first President Bush. In 1985 and 1986, he served as a law clerk to Chief Justice Warren Burger of the United States Supreme Court.
Goldsmith, Jack Landman III
Former Assistant Attorney General, Office of Legal Counsel
Goldsmith is currently a Professor of Law at Harvard Law School. Until recently, he was an Assistant Attorney General in the Justice Department’s Office of Legal Counsel for the Bush Administration. Previously, he taught law at the University of Chicago and the University of Virginia. He has written numerous books and articles in the field of international and foreign relations law.
Gonzales, Alberto R.
Assistant to the President and White House Counsel
Gonzales was appointed as Counsel to President George W. Bush in January 2001. Prior to his position in the White House, Gonzales served as a Justice of the Supreme Court of Texas, a position he was appointed to in 1999. He also served as Texas’ Secretary of State from December 1997 to January 1999 and was the General Counsel to Governor Bush for three years prior to becoming Secretary of State.
Haynes William J. II
General Counsel, U.S. Department of Defense
Haynes was appointed to the position of General Counsel of the Department of Defense by President George Bush in May 2001. He serves as the chief legal officer of the Department of Defense and the legal advisor to the Secretary of Defense. In 1990, the President appointed him General Counsel of the Department of the Army, a position he held until 1993, when he joined the law firm Jenner & Block.
Hill, James T. (General)
Commander, U.S. Southern Command
General Hill was appointed the Commander of the U.S. Southern Command in October 2002. Since being commissioned by the infantry after his college graduation in 1968, Gen- eral Hill has had numerous Commanding Military assignments. He also earned many medals and awards throughout his military career.
Jones, Anthony R. (Lieutenant General)
Deputy Commanding General/Chief of Staff U.S. Army Training and Doctrine Command, Fort Monroe, VA
A career military man, Lieutenant General Jones became the Deputy Commanding General and Chief of Staff for Headquarters, U.S. Army Training and Doctrine Command, in June 2003.
Mikolashek, Paul T. (Lieutenant General)
Commanding General, Third U.S. Army
A career military man, Lieutenant General Mikolashek became the Commanding General of the Third U.S. Army and U.S. Army Forces Central Command in June 2000. Prior to this position, he served as Commanding General for U.S. Army Southern European Task Force, a position he assumed in September 1998.
Philbin, Patrick F.
Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice Philbin was appointed to the position of Deputy Assistant Attorney General in September 2001. Prior to joining the Justice Department, he was a partner in the Washington office of the law firm Kirkland & Ellis.
Powell, Colin L.
Secretary of State, U.S. Department of State
Powell was nominated to the position of Secretary of State by President Bush in Decem- ber 2000 and was sworn in as Secretary in January 2001. Prior to becoming Secretary of State, Powell was the chairman of America’s Promise – The Alliance for Youth. Prior to this position, he served as a professional soldier for 35 years. He was the Chairman of the Joint Chiefs of Staff in the Department of Defense from October 1989 to September 1993 and Assistant to the President for National Security Affairs from December 1987 to January 1989.
Rumsfeld, Donald F.
Secretary of Defense, U.S. Department of Defense
Rumsfeld was sworn in as Secretary of Defense for the second time in January 2001. He previously held this position from 1975 to1977, serving under President Ford. In addition, Rumsfeld served as White House Chief of Staff from 1974 to 1975, U.S. Ambassador to NATO from 1973 to 1974, and U.S. Congressman from 1962 to 1969. From 1977 to 2000, he worked in the private sector, during which time he was chief executive officer of two Fortune 500 companies.
Sanchez, Richardo S. (Lieutenant General)
Former Commander of Joint Task Force 7
A career military man, Lt. Gen. Sanchez was the commander of Combined Joint Task Force 7 and the senior military official in Iraq until July 2004. In July 2001, Lt. Gen. Sanchez became commanding general of V Corps’ 1st Armored Division. He held that position for nearly two years before assuming command of the V Corps on June 14, 2003.
Schlesinger, James R.
Former U.S. Secretary of Defense
Schlesinger served as Secretary of Defense from 1973 to 1975. He currently is a Consultant to the U.S. Department of Defense, as well as a Commissioner on the U.S. Commission on National Security/21st Century/Hart-Rudman Commission and a member of the Homeland Security Advisory Council. Schlesinger’s prior positions include Secretary of Energy (1977– 79), Assistant to the President (1977), Director of the C.I.A. (1973), and Director of Strategic Studies (1967–69), and Senior Staff Member (1963–67), at the RAND Corporation.
Taft William H. IV
Legal Advisor, Office of the Legal Advisor, U.S. Department of State
Taft was appointed as the Legal Advisor to the Secretary of State in April 2001. Prior to this position, Taft was a litigation partner in the law firm Fried Franks, which he joined in 1992. From 1989 to 1992, he served as the U.S. Permanent Representative to NATO. He was the Deputy Secretary of Defense from January 1984 to April 1989 and Acting Secretary of Defense from January to March 1989. He also served as General Counsel for the Department of Defense from 1981 to 1984.
Taguba, Antonio M. (Major General)
U.S. Army Commander
A career military man, Major General Taguba is currently Deputy Assistant Secretary of Defense for readiness, training, and mobilization in the office of the Assistant Secretary of Defense for Reserve Affairs. Taguba was reassigned to this position, after serving as Deputy Commanding General, Third U.S. Army, U.S. Army Forces Central Command, and Coalition Forces Land Component Command. He previously was the Acting Director of the Army Staff, Headquarters, Department of the Army, The Pentagon.
Yoo, John C.
Professor of Law, Boalt Hall School of Law, University of California, Berkeley/Former
Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice Yoo served as Deputy Assistant Attorney General from 2001 to 2003. Prior to this position, he served as General Counsel of the U.S. Senate Judiciary Committee from 1995 to 1996. He has been a member of the Boalt faculty since 1993 and clerked for Justice Clarence Thomas on the U.S. Supreme Court.
The Torture Papers: The Road to Abu Ghraib, edited by Karen
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PART 1 OF 2
MEMO 1
U.S. Department of Justice
Office of the Legal Counsel
September 25, 2001
MEMORANDUM OPINION FOR TIMOTHY FLANIGAN, THE DEPUTY COUNSEL TO THE PRESIDENT
FROM: John C. Yoo, Deputy Assistant Attorney General
THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM
The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.
The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.
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September 25, 2001
MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT
You have asked for our opinion as to the scope of the President's authority to take military action in response to the terrorist attacks on the United States on September 11, 2001. We conclude that the President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-1548 (the "WPR"), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.
Our analysis falls into four parts. First, we examine the Constitution's text and structure. We conclude that the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign relations, to use military force abroad - especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States. Second, we confirm that conclusion by reviewing the executive and judicial statements and decisions interpreting the Constitution and the President's powers under it. Third, we analyze the relevant practice of the United States, including recent history, that supports the view that the President has the authority to deploy military force in response to emergency conditions such as those created by the September 11, 2001, terrorist attacks. Finally, we discuss congressional enactments that, in our view, acknowledge the President's plenary authority to use force to respond to the terrorist attack on the United States.
Our review establishes that all three branches of the Federal Government - Congress, the Executive, and the Judiciary - agree that the President has broad authority to use military force abroad, including the ability to deter future attacks.
I.
The President's constitutional power to defend the United States and the lives of its people must be understood in light of the Founders' express intention to create a federal government "cloathed with all the powers requisite to [the] complete execution of its trust." The Federalist No. 23, at 122 (Alexander Hamilton) (Charles R. Kesler ed., 1999). Foremost among the objectives committed to that trust by the Constitution is the security of the Nation. (1) As Hamilton explained in arguing for the Constitution's adoption, because "the circumstances which may affect the public safety are [not] reducible within certain determinate limits, . . . it must be admitted, as a necessary consequence that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficiency." Id. (2)
"It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981) (citation omitted). Within the limits that the Constitution itself imposes, the scope and distribution of the powers to protect national security must be construed to authorize the most efficacious defense of the Nation and its interests in accordance "with the realistic purposes of the entire instrument." Lichter v. United States, 334 U.S. 742, 782 (1948). Nor is the authority to protect national security limited to actions necessary for "victories in the field." Application of Yamashita, 327 U.S. 1, 12 (1946). The authority over national security "carries with it the inherent power to guard against the immediate renewal of the conflict." Id.
We now turn to the more precise question of the President's inherent constitutional powers to use military force.
Constitutional Text. The text, structure and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to use military force in situations of emergency. Article II, Section 2 states that the "President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." U.S. Const. art. II, § 2, cl. 1. He is further vested with all of "the executive Power" and the duty to execute the laws. U.S. Const. art. II, § 1. These powers give the President broad constitutional authority to use military force in response to threats to the national security and foreign policy of the United States. (3) During the period leading up to the Constitution's ratification, the power to initiate hostilities and to control the escalation of conflict had been long understood to rest in the hands of the executive branch. (4)
By their terms, these provisions vest full control of the military forces of the United States in the President. The power of the President is at its zenith under the Constitution when the President is directing military operations of the armed forces, because the power of Commander in Chief is assigned solely to the President. It has long been the view of this Office that the Commander-in-Chief Clause is a substantive grant of authority to the President and that the scope of the President's authority to commit the armed forces to combat is very broad. See, e.g., Memorandum for Honorable Charles W. Colson, Special Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The President and the War Power: South Vietnam and the Cambodian Sanctuaries (May 22, 1970) (the "Rehnquist Memo"). The President's complete discretion in exercising the Commander-in-Chief power has also been recognized by the courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court explained that, whether the President "in fulfilling his duties as Commander in Chief" had met with a situation justifying treating the southern States as belligerents and instituting a blockade, was a question "to be decided by him" and which the Court could not question, but must leave to "the political department of the Government to which this power was entrusted." (5)
Some commentators have read the constitutional text differently. They argue that the vesting of the power to declare war gives Congress the sole authority to decide whether to make war. (6) This view misreads the constitutional text and misunderstands the nature of a declaration of war. Declaring war is not tantamount to making war - indeed, the Constitutional Convention specifically amended the working draft of the Constitution that had given Congress the power to make war. An earlier draft of the Constitution had given to Congress the power to "make" war. When it took up this clause on August 17, 1787, the Convention voted to change the clause from "make" to "declare." 2 The Records of the Federal Convention of 1787, at 318-19 (Max Farrand ed., rev. ed. 1966) (1911). A supporter of the change argued that it would "leav[e] to the Executive the power to repel sudden attacks." Id. at 318. Further, other elements of the Constitution describe "engaging" in war, which demonstrates that the Framers understood making and engaging in war to be broader than simply "declaring" war. See U.S. Const. art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."). A State constitution at the time of the ratification included provisions that prohibited the governor from "making" war without legislative approval, S.C. Const. art. XXVI (1776), reprinted in 6 The Federal and State Constitutions 3247 (Francis Newton Thorpe ed., 1909). (7) If the Framers had wanted to require congressional consent before the initiation of military hostilities, they knew how to write such provisions.
Finally, the Framing generation well understood that declarations of war were obsolete. Not all forms of hostilities rose to the level of a declared war: during the seventeenth and eighteenth centuries, Great Britain and colonial America waged numerous conflicts against other states without an official declaration of war. (8) As Alexander Hamilton observed during the ratification, "the ceremony of a formal denunciation of war has of late fallen into disuse." The Federalist No. 25, at 133 (Alexander Hamilton). Instead of serving as an authorization to begin hostilities, a declaration of war was only necessary to "perfect" a conflict under international law. A declaration served to fully transform the international legal relationship between two states from one of peace to one of war. See 1 William Blackstone, Commentaries *249-50. Given this context, it is clear that Congress's power to declare war does not constrain the President's independent and plenary constitutional authority over the use of military force.
Constitutional Structure. Our reading of the text is reinforced by analysis of the constitutional structure. First, it is clear that the Constitution secures all federal executive power in the President to ensure a unity in purpose and energy in action. "Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number." The Federalist No. 70, at 392 (Alexander Hamilton). The centralization of authority in the President alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch. As Hamilton noted, "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks." Id. at 391. This is no less true in war. "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." Id. No. 74, at 415 (Alexander Hamilton). (9)
Second, the Constitution makes clear that the process used for conducting military hostilities is different from other government decisionmaking. In the area of domestic legislation, the Constitution creates a detailed, finely wrought procedure in which Congress plays the central role. In foreign affairs, however, the Constitution does not establish a mandatory, detailed, Congress-driven procedure for taking action. Rather, the Constitution vests the two branches with different powers - the President as Commander in Chief, Congress with control over funding and declaring war - without requiring that they follow a specific process in making war. By establishing this framework, the Framers expected that the process for warmaking would be far more flexible, and capable of quicker, more decisive action, than the legislative process. Thus, the President may use his Commander-in-Chief and executive powers to use military force to protect the Nation, subject to congressional appropriations and control over domestic legislation.
Third, the constitutional structure requires that any ambiguities in the allocation of a power that is executive in nature - such as the power to conduct military hostilities - must be resolved in favor of the executive branch. Article II, section 1 provides that "[t]he executive Power shall be vested in a President of the United States." U.S. Const. art. II, § 1. By contrast, Article I's Vesting Clause gives Congress only the powers "herein granted." Id. art. I, § 1. This difference in language indicates that Congress's legislative powers are limited to the list enumerated in Article I, section 8, while the President's powers include inherent executive powers that are unenumerated in the Constitution. To be sure, Article II lists specifically enumerated powers in addition to the Vesting Clause, and some have argued that this limits the "executive Power" granted in the Vesting Clause to the powers on that list. But the purpose of the enumeration of executive powers in Article II was not to define and cabin the grant in the Vesting Clause. Rather, the Framers unbundled some plenary powers that had traditionally been regarded as "executive," assigning elements of those powers to Congress in Article I, while expressly reserving other elements as enumerated executive powers in Article II. So, for example, the King's traditional power to declare war was given to Congress under Article I, while the Commander-in-Chief authority was expressly reserved to the President in Article II. Further, the Framers altered other plenary powers of the King, such as treaties and appointments, assigning the Senate a share in them in Article II itself. (10) Thus, the enumeration in Article II marks the points at which several traditional executive powers were diluted or reallocated. Any other, unenumerated executive powers, however, were conveyed to the President by the Vesting Clause.
There can be little doubt that the decision to deploy military force is "executive" in nature, and was traditionally so regarded. It calls for action and energy in execution, rather than the deliberate formulation of rules to govern the conduct of private individuals. Moreover, the Framers understood it to be an attribute of the executive. "The direction of war implies the direction of the common strength," wrote Alexander Hamilton, "and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority." The Federalist No. 74, at 415 (Alexander Hamilton). As a result, to the extent that the constitutional text does not explicitly allocate the power to initiate military hostilities to a particular branch, the Vesting Clause provides that it remain among the President's unenumerated powers.
Fourth, depriving the President of the power to decide when to use military force would disrupt the basic constitutional framework of foreign relations. From the very beginnings of the Republic, the vesting of the executive, Commander-in-Chief, and treaty powers in the executive branch has been understood to grant the President plenary control over the conduct of foreign relations. As Secretary of State Thomas Jefferson observed during the first Washington Administration: "the constitution has divided the powers of government into three branches [and] has declared that the executive powers shall be vested in the president, submitting only special articles of it to a negative by the senate." Due to this structure, Jefferson continued, "the transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the senate. Exceptions are to be construed strictly." Thomas Jefferson, Opinion on the Powers of the Senate (1790), reprinted in 5 The Writings of Thomas Jefferson, at 161 (Paul L. Ford ed., 1895). In defending President Washington's authority to issue the Neutrality Proclamation, Alexander Hamilton came to the same interpretation of the President's foreign affairs powers. According to Hamilton, Article II "ought . . . to be considered as intended . . . to specify and regulate the principal articles implied in the definition of Executive Power; leaving the rest to flow from the general grant of that power." Alexander Hamilton, Pacificus No. 1 (1793), reprinted in 15 The Papers of Alexander Hamilton, at 33, 39 (Harold C. Syrett et al. eds., 1969). As future Chief Justice John Marshall famously declared a few years later, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. . . . The [executive] department . . . is entrusted with the whole foreign intercourse of the nation . . . ." 10 Annals of Cong. 613-14 (1800). Given the agreement of Jefferson, Hamilton, and Marshall, it has not been difficult for the executive branch consistently to assert the President's plenary authority in foreign affairs ever since.
In the relatively few occasions where it has addressed foreign affairs, the Supreme Court has agreed with the executive branch's consistent interpretation. Conducting foreign affairs and protecting the national security are, as the Supreme Court has observed, "'central' Presidential domains." Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982). The President's constitutional primacy flows from both his unique position in the constitutional structure, and from the specific grants of authority in Article II that make the President both the Chief Executive of the Nation and the Commander in Chief. See Nixon v. Fitzgerald, 457 U.S. 731, 749-50 (1982). Due to the President's constitutionally superior position, the Supreme Court has consistently "recognized 'the generally accepted view that foreign policy [is] the province and responsibility of the Executive.'" Department of the Navy v. Egan, 484 U.S. 518, 529 (1988) (quoting Haig v. Agee, 453 U.S. at 293-94). "The Founders in their wisdom made [the President] not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs," possessing "vast powers in relation to the outside world." Ludecke v. Watkins, 335 U.S. 160, 173 (1948). This foreign affairs power is exclusive: it is "the very delicate, plenary and exclusive power of the President as sole organ of the federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).
Conducting military hostilities is a central tool for the exercise of the President's plenary control over the conduct of foreign policy. There can be no doubt that the use of force protects the Nation's security and helps it achieve its foreign policy goals. Construing the Constitution to grant such power to another branch could prevent the President from exercising his core constitutional responsibilities in foreign affairs. Even in the cases in which the Supreme Court has limited executive authority, it has also emphasized that we should not construe legislative prerogatives to prevent the executive branch "from accomplishing its constitutionally assigned functions." Nixon v. Administrator of General Servs., 433 U.S. 425, 443 (1977).
II.
Executive Branch Construction and Practice. The position we take here has long represented the view of the executive branch and of the Department of Justice. Attorney General (later Justice) Robert Jackson formulated the classic statement of the executive branch's understanding of the President's military powers in 1941:
Training of British Flying Students in the United States, 40 Op. Att'y Gen. 58, 61-62 (1941).(11) Other Attorneys General have defended similar accounts of the President constitutional powers and duties, particularly in times of unforeseen emergencies.
Attorney General William P. Barr, quoting the opinion of Attorney General Jackson just cited, advised the President in 1992 that "[y]ou have authority to commit troops overseas without specific prior Congressional approval 'on missions of good will or rescue, or for the purpose of protecting American lives or property or American interests.'" Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. at 6 (citation omitted).
Attorney General (later Justice) Frank Murphy, though declining to define precisely the scope of the President's independent authority to act in emergencies or states of war, stated that:
Request of the Senate for an Opinion as to the Powers of the President "In Emergency or State of War," 39 Op. Att'y Gen. 343, 347-48 (1939).
Attorney General Thomas Gregory opined in 1914 that "[i]n the preservation of the safety and integrity of the United States and the protection of its responsibilities and obligations as a sovereignty, [the President's] powers are broad." Censorship of Radio Stations, 30 Op. Att'y Gen. 291, 292 (1914).
Foreign Cables, 22 Op. Att'y Gen. 13, 25-26 (1898). Acting Attorney General Richards cited, among other judicial decisions, Cunningham v. Neagle, 135 U.S. 1, 64 (1890), in which the Supreme Court stated that the President's power to enforce the laws of the United States "include[s] the rights, duties and obligations growing out of the constitution itself, our international relations, and all the protection implied by the nature of the government under the constitution."
Opinions of the Office of Legal Counsel. Our Office has taken the position in recent Administrations, including those of Presidents Clinton, Bush, Reagan, Carter, and Nixon, that the President may unilaterally deploy military force in order to protect the national security and interests of the United States.
In 1995, we opined that the President "acting without specific statutory authorization, lawfully may introduce United States ground troops into Bosnia and Herzegovina . . . to help the North Atlantic Treaty Organization . . . ensure compliance with the recently negotiated peace agreement." Proposed Deployment of United States Armed Forces in Bosnia and Herzegovina, 19 Op. O.L.C. 327, 327 (1995) (the "Bosnia Opinion"). We interpreted the WPR to "lend[] support to the . . . conclusion that the President has authority, without specific statutory authorization, to introduce troops into hostilities in a substantial range of circumstances." Id. at 335.
In Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173 (1994), we advised that the President had the authority unilaterally to deploy some 20,000 troops into Haiti. We relied in part on the structure of the WPR, which we argued "makes sense only if the President may introduce troops into hostilities or potential hostilities without prior authorization by the Congress." Id. at 175-76. We further argued that "in establishing and funding a military force that is capable of being projected anywhere around the globe, Congress has given the President, as Commander in Chief, considerable discretion in deciding how that force is to be deployed." Id. at 177. We also cited and relied upon the past practice of the executive branch in undertaking unilateral military interventions:
Id. at 178.
In Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. at 8, our Office advised that the President had the constitutional authority to deploy United States Armed Forces into Somalia in order to assist the United Nations in ensuring the safe delivery of relief to distressed areas of that country. We stated that "the President's role under our Constitution as Commander in Chief and Chief Executive vests him with the constitutional authority to order United States troops abroad to further national interests such as protecting the lives of Americans overseas." Id. at 8. Citing past practice (further discussed below), we pointed out that
Id. at 9 (citations omitted).
In Overview of the War Powers Resolution, 8 Op. O.L.C. 271, 275 (1984), we noted that "[t]he President's authority to deploy armed forces has been exercised in a broad range of circumstances [in] our history."
In Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185, 187 (1980), we stated that
In light of that understanding, we advised that the President had independent constitutional authority unilaterally to order "(1) deployment abroad at some risk of engagement - for example, the current presence of the fleet in the Persian Gulf region; (2) a military expedition to rescue the hostages or to retaliate against Iran if the hostages are harmed; (3) an attempt to repel an assault that threatens our vital interests in that region." Id. at 185-86. See also Presidential Powers Relating to the Situation in Iran, 4A Op. O.L.C. 115, 121 (1979) ("It is well established that the President has the constitutional power as Chief Executive and Commander-in-Chief to protect the lives and property of Americans abroad. This understanding is reflected in judicial decisions
. . . and recurring historic practice which goes back to the time of Jefferson.").
Finally, in the Rehnquist Memo at 8, we concluded that the President as Commander in Chief had the authority "to commit military forces of the United States to armed conflict . . . to protect the lives of American troops in the field."
Judicial Construction. Judicial decisions since the beginning of the Republic confirm the President's constitutional power and duty to repel military action against the United States through the use of force, and to take measures to deter the recurrence of an attack. As Justice Joseph Story said long ago, "[i]t may be fit and proper for the government, in the exercise of the high discretion confided to the executive, for great public purposes, to act on a sudden emergency, or to prevent an irreparable mischief, by summary measures, which are not found in the text of the laws." The Apollon, 22 U.S. (9 Wheat.) 362, 366-67 (1824). The Constitution entrusts the "power [to] the executive branch of the government to preserve order and insure the public safety in times of emergency, when other branches of the government are unable to function, or their functioning would itself threaten the public safety." Duncan v. Kahanamoku, 327 U.S. 304, 335 (1946) (Stone, C.J., concurring).
If the President is confronted with an unforeseen attack on the territory and people of the United States, or other immediate, dangerous threat to American interests and security, the courts have affirmed that it is his constitutional responsibility to respond to that threat with whatever means are necessary, including the use of military force abroad. See, e.g., Prize Cases, 67 U.S. at 635 ("If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force . . . without waiting for any special legislative authority."); Kahanamoku, 327 U.S. at 336 (Stone, C.J., concurring) ("Executive has broad discretion in determining when the public emergency is such as to give rise to the necessity" for emergency measures); United States v. Smith, 27 F. Cas. 1192, 1230 (C.C.D.N.Y. 1806) (No. 16,342) (Paterson, Circuit Justice) (regardless of statutory authorization, it is "the duty . . . of the executive magistrate . . . to repel an invading foe") (12); Mitchell v. Laird, 488 F.2d 611, 613 (D.C. Cir. 1973) ("there are some types of war which without Congressional approval, the President may begin to wage: for example, he may respond immediately without such approval to a belligerent attack") (13); see also Campbell v. Clinton, 203 F.3d 19, 27 (D.C. Cir.) (Silberman, J. concurring) ("[T]he President has independent authority to repel aggressive acts by third parties even without specific statutory authorization."), cert. denied, 531 U.S. 815 (2000);id. at 40 (Tatel, J., concurring) ("[T]he President, as Commander in Chief, possesses emergency authority to use military force to defend the nation from attack without obtaining prior congressional approval."); Story, supra note 9, § 1485 ("[t]he command and application of the public force . . . to maintain peace, and to resist foreign invasion" are executive powers).
III.
The historical practice of all three branches confirms the lessons of the constitutional text and structure. The normative role of historical practice in constitutional law, and especially with regard to separation of powers, is well settled. (14) Both the Supreme Court and the political branches have often recognized that governmental practice plays a highly significant role in establishing the contours of the constitutional separation of powers: "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on 'executive Power' vested in the President by § 1 of Art. II." Youngstown Sheet & Tube Co., 343 U.S. at 610-11 (Frankfurter, J., concurring). Indeed, as the Court has observed, the role of practice in fixing the meaning of the separation of powers is implicit in the Constitution itself: "'the Constitution . . . contemplates that practice will integrate the dispersed powers into a workable government.'" Mistretta v. United States, 488 U.S. 361, 381 (1989) (citation omitted). In addition, governmental practice enjoys significant weight in constitutional analysis for practical reasons, on "the basis of a wise and quieting rule that, in determining . . . the existence of a power, weight shall be given to the usage itself - even when the validity of the practice is the subject of investigation." United States v. Midwest Oil Co., 236 U.S. 459, 473 (1915).
The role of practice is heightened in dealing with issues affecting foreign affairs and national security, where "the Court has been particularly willing to rely on the practical statesmanship of the political branches when considering constitutional questions." Whether Uruguay Round Agreements Required Ratification as a Treaty, 18 Op. O.L.C. 232, 234 (1994). "The persistence of these controversies (which trace back to the eighteenth century), and the nearly complete absence of judicial decisions resolving them, underscore the necessity of relying on congressional precedent to interpret the relevant constitutional provisions." Id. at 236. Accordingly, we give considerable weight to the practice of the political branches in trying to determine the constitutional allocation of warmaking powers between them.
The historical record demonstrates that the power to initiate military hostilities, particularly in response to the threat of an armed attack, rests exclusively with the President. As the Supreme Court has observed, "[t]he United States frequently employs Armed Forces outside this country - over 200 times in our history - for the protection of American citizens or national security." United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990). On at least 125 such occasions, the President acted without prior express authorization from Congress. See Bosnia Opinion, 19 Op. O.L.C. at 331. Such deployments, based on the President's constitutional authority alone, have occurred since the Administration of George Washington. See David P. Currie, The Constitution in Congress: Substantive Issues in the First Congress, 1789-1791, 61 U. Chi. L. Rev. 775, 816 (1994) ("[B]oth Secretary [of War] Knox and [President] Washington himself seemed to think that this [Commander in Chief] authority extended to offensive operations taken in retaliation for Indian atrocities.") (quoted in Bosnia Opinion, 19 Op. O.L.C. at 331 n.4. Perhaps the most significant deployment without specific statutory authorization took place at the time of the Korean War, when President Truman, without prior authorization from Congress, deployed United States troops in a war that lasted for over three years and caused over 142,000 American casualties. See Bosnia Opinion, 19 Op. O.L.C. at 331-32 n.5.
Recent deployments ordered solely on the basis of the President's constitutional authority have also been extremely large, representing a substantial commitment of the Nation's military personnel, diplomatic prestige, and financial resources. On at least one occasion, such a unilateral deployment has constituted full-scale war. On March 24, 1999, without any prior statutory authorization and in the absence of an attack on the United States, President Clinton ordered hostilities to be initiated against the Republic of Yugoslavia. The President informed Congress that, in the initial wave of air strikes, "United States and NATO forces have targeted the [Yugoslavian] government's integrated air defense system, military and security police command and control elements, and military and security police facilities and infrastructure. . . . I have taken these actions pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive." Letter to Congressional leaders reporting on airstrikes against Serbian targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 1 Pub. Papers of William Jefferson Clinton 459, 459 (1999). Bombing attacks against targets in both Kosovo and Serbia ended on June 10, 1999, seventy-nine days after the war began. More than 30,000 United States military personnel participated in the operations; some 800 U.S. aircraft flew more than 20,000 sorties; more than 23,000 bombs and missiles were used. As part of the peace settlement, NATO deployed some 50,000 troops into Kosovo, 7,000 of them American. (15) In a News Briefing on June 10, 1999, Secretary of Defense William S. Cohen summarized the effects of the campaign by saying,
General Shelton of the Joint Chiefs of Staff reported that "about half of [Yugoslavia's] defense industry has either been damaged or destroyed. . . . [A]viation, 70 percent; armored vehicle production, 40 [percent]; petroleum refineries, 100 percent down; explosive production, about 50 percent; and 65 percent of his ammunition. . . . For the most part Belgrade is a city that's got about probably 70 percent without [electrical] power." (17) A report by General Ryan, Air Force Chief of Staff, on June 8, 1999, stated that
MEMO 1
U.S. Department of Justice
Office of the Legal Counsel
September 25, 2001
MEMORANDUM OPINION FOR TIMOTHY FLANIGAN, THE DEPUTY COUNSEL TO THE PRESIDENT
FROM: John C. Yoo, Deputy Assistant Attorney General
THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM
The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.
The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.
--------------------------------------------------------------------------------
September 25, 2001
MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT
You have asked for our opinion as to the scope of the President's authority to take military action in response to the terrorist attacks on the United States on September 11, 2001. We conclude that the President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-1548 (the "WPR"), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.
Our analysis falls into four parts. First, we examine the Constitution's text and structure. We conclude that the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign relations, to use military force abroad - especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States. Second, we confirm that conclusion by reviewing the executive and judicial statements and decisions interpreting the Constitution and the President's powers under it. Third, we analyze the relevant practice of the United States, including recent history, that supports the view that the President has the authority to deploy military force in response to emergency conditions such as those created by the September 11, 2001, terrorist attacks. Finally, we discuss congressional enactments that, in our view, acknowledge the President's plenary authority to use force to respond to the terrorist attack on the United States.
Our review establishes that all three branches of the Federal Government - Congress, the Executive, and the Judiciary - agree that the President has broad authority to use military force abroad, including the ability to deter future attacks.
I.
The President's constitutional power to defend the United States and the lives of its people must be understood in light of the Founders' express intention to create a federal government "cloathed with all the powers requisite to [the] complete execution of its trust." The Federalist No. 23, at 122 (Alexander Hamilton) (Charles R. Kesler ed., 1999). Foremost among the objectives committed to that trust by the Constitution is the security of the Nation. (1) As Hamilton explained in arguing for the Constitution's adoption, because "the circumstances which may affect the public safety are [not] reducible within certain determinate limits, . . . it must be admitted, as a necessary consequence that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficiency." Id. (2)
"It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981) (citation omitted). Within the limits that the Constitution itself imposes, the scope and distribution of the powers to protect national security must be construed to authorize the most efficacious defense of the Nation and its interests in accordance "with the realistic purposes of the entire instrument." Lichter v. United States, 334 U.S. 742, 782 (1948). Nor is the authority to protect national security limited to actions necessary for "victories in the field." Application of Yamashita, 327 U.S. 1, 12 (1946). The authority over national security "carries with it the inherent power to guard against the immediate renewal of the conflict." Id.
We now turn to the more precise question of the President's inherent constitutional powers to use military force.
Constitutional Text. The text, structure and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to use military force in situations of emergency. Article II, Section 2 states that the "President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." U.S. Const. art. II, § 2, cl. 1. He is further vested with all of "the executive Power" and the duty to execute the laws. U.S. Const. art. II, § 1. These powers give the President broad constitutional authority to use military force in response to threats to the national security and foreign policy of the United States. (3) During the period leading up to the Constitution's ratification, the power to initiate hostilities and to control the escalation of conflict had been long understood to rest in the hands of the executive branch. (4)
By their terms, these provisions vest full control of the military forces of the United States in the President. The power of the President is at its zenith under the Constitution when the President is directing military operations of the armed forces, because the power of Commander in Chief is assigned solely to the President. It has long been the view of this Office that the Commander-in-Chief Clause is a substantive grant of authority to the President and that the scope of the President's authority to commit the armed forces to combat is very broad. See, e.g., Memorandum for Honorable Charles W. Colson, Special Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The President and the War Power: South Vietnam and the Cambodian Sanctuaries (May 22, 1970) (the "Rehnquist Memo"). The President's complete discretion in exercising the Commander-in-Chief power has also been recognized by the courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court explained that, whether the President "in fulfilling his duties as Commander in Chief" had met with a situation justifying treating the southern States as belligerents and instituting a blockade, was a question "to be decided by him" and which the Court could not question, but must leave to "the political department of the Government to which this power was entrusted." (5)
Some commentators have read the constitutional text differently. They argue that the vesting of the power to declare war gives Congress the sole authority to decide whether to make war. (6) This view misreads the constitutional text and misunderstands the nature of a declaration of war. Declaring war is not tantamount to making war - indeed, the Constitutional Convention specifically amended the working draft of the Constitution that had given Congress the power to make war. An earlier draft of the Constitution had given to Congress the power to "make" war. When it took up this clause on August 17, 1787, the Convention voted to change the clause from "make" to "declare." 2 The Records of the Federal Convention of 1787, at 318-19 (Max Farrand ed., rev. ed. 1966) (1911). A supporter of the change argued that it would "leav[e] to the Executive the power to repel sudden attacks." Id. at 318. Further, other elements of the Constitution describe "engaging" in war, which demonstrates that the Framers understood making and engaging in war to be broader than simply "declaring" war. See U.S. Const. art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."). A State constitution at the time of the ratification included provisions that prohibited the governor from "making" war without legislative approval, S.C. Const. art. XXVI (1776), reprinted in 6 The Federal and State Constitutions 3247 (Francis Newton Thorpe ed., 1909). (7) If the Framers had wanted to require congressional consent before the initiation of military hostilities, they knew how to write such provisions.
Finally, the Framing generation well understood that declarations of war were obsolete. Not all forms of hostilities rose to the level of a declared war: during the seventeenth and eighteenth centuries, Great Britain and colonial America waged numerous conflicts against other states without an official declaration of war. (8) As Alexander Hamilton observed during the ratification, "the ceremony of a formal denunciation of war has of late fallen into disuse." The Federalist No. 25, at 133 (Alexander Hamilton). Instead of serving as an authorization to begin hostilities, a declaration of war was only necessary to "perfect" a conflict under international law. A declaration served to fully transform the international legal relationship between two states from one of peace to one of war. See 1 William Blackstone, Commentaries *249-50. Given this context, it is clear that Congress's power to declare war does not constrain the President's independent and plenary constitutional authority over the use of military force.
Constitutional Structure. Our reading of the text is reinforced by analysis of the constitutional structure. First, it is clear that the Constitution secures all federal executive power in the President to ensure a unity in purpose and energy in action. "Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number." The Federalist No. 70, at 392 (Alexander Hamilton). The centralization of authority in the President alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch. As Hamilton noted, "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks." Id. at 391. This is no less true in war. "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." Id. No. 74, at 415 (Alexander Hamilton). (9)
Second, the Constitution makes clear that the process used for conducting military hostilities is different from other government decisionmaking. In the area of domestic legislation, the Constitution creates a detailed, finely wrought procedure in which Congress plays the central role. In foreign affairs, however, the Constitution does not establish a mandatory, detailed, Congress-driven procedure for taking action. Rather, the Constitution vests the two branches with different powers - the President as Commander in Chief, Congress with control over funding and declaring war - without requiring that they follow a specific process in making war. By establishing this framework, the Framers expected that the process for warmaking would be far more flexible, and capable of quicker, more decisive action, than the legislative process. Thus, the President may use his Commander-in-Chief and executive powers to use military force to protect the Nation, subject to congressional appropriations and control over domestic legislation.
Third, the constitutional structure requires that any ambiguities in the allocation of a power that is executive in nature - such as the power to conduct military hostilities - must be resolved in favor of the executive branch. Article II, section 1 provides that "[t]he executive Power shall be vested in a President of the United States." U.S. Const. art. II, § 1. By contrast, Article I's Vesting Clause gives Congress only the powers "herein granted." Id. art. I, § 1. This difference in language indicates that Congress's legislative powers are limited to the list enumerated in Article I, section 8, while the President's powers include inherent executive powers that are unenumerated in the Constitution. To be sure, Article II lists specifically enumerated powers in addition to the Vesting Clause, and some have argued that this limits the "executive Power" granted in the Vesting Clause to the powers on that list. But the purpose of the enumeration of executive powers in Article II was not to define and cabin the grant in the Vesting Clause. Rather, the Framers unbundled some plenary powers that had traditionally been regarded as "executive," assigning elements of those powers to Congress in Article I, while expressly reserving other elements as enumerated executive powers in Article II. So, for example, the King's traditional power to declare war was given to Congress under Article I, while the Commander-in-Chief authority was expressly reserved to the President in Article II. Further, the Framers altered other plenary powers of the King, such as treaties and appointments, assigning the Senate a share in them in Article II itself. (10) Thus, the enumeration in Article II marks the points at which several traditional executive powers were diluted or reallocated. Any other, unenumerated executive powers, however, were conveyed to the President by the Vesting Clause.
There can be little doubt that the decision to deploy military force is "executive" in nature, and was traditionally so regarded. It calls for action and energy in execution, rather than the deliberate formulation of rules to govern the conduct of private individuals. Moreover, the Framers understood it to be an attribute of the executive. "The direction of war implies the direction of the common strength," wrote Alexander Hamilton, "and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority." The Federalist No. 74, at 415 (Alexander Hamilton). As a result, to the extent that the constitutional text does not explicitly allocate the power to initiate military hostilities to a particular branch, the Vesting Clause provides that it remain among the President's unenumerated powers.
Fourth, depriving the President of the power to decide when to use military force would disrupt the basic constitutional framework of foreign relations. From the very beginnings of the Republic, the vesting of the executive, Commander-in-Chief, and treaty powers in the executive branch has been understood to grant the President plenary control over the conduct of foreign relations. As Secretary of State Thomas Jefferson observed during the first Washington Administration: "the constitution has divided the powers of government into three branches [and] has declared that the executive powers shall be vested in the president, submitting only special articles of it to a negative by the senate." Due to this structure, Jefferson continued, "the transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the senate. Exceptions are to be construed strictly." Thomas Jefferson, Opinion on the Powers of the Senate (1790), reprinted in 5 The Writings of Thomas Jefferson, at 161 (Paul L. Ford ed., 1895). In defending President Washington's authority to issue the Neutrality Proclamation, Alexander Hamilton came to the same interpretation of the President's foreign affairs powers. According to Hamilton, Article II "ought . . . to be considered as intended . . . to specify and regulate the principal articles implied in the definition of Executive Power; leaving the rest to flow from the general grant of that power." Alexander Hamilton, Pacificus No. 1 (1793), reprinted in 15 The Papers of Alexander Hamilton, at 33, 39 (Harold C. Syrett et al. eds., 1969). As future Chief Justice John Marshall famously declared a few years later, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. . . . The [executive] department . . . is entrusted with the whole foreign intercourse of the nation . . . ." 10 Annals of Cong. 613-14 (1800). Given the agreement of Jefferson, Hamilton, and Marshall, it has not been difficult for the executive branch consistently to assert the President's plenary authority in foreign affairs ever since.
In the relatively few occasions where it has addressed foreign affairs, the Supreme Court has agreed with the executive branch's consistent interpretation. Conducting foreign affairs and protecting the national security are, as the Supreme Court has observed, "'central' Presidential domains." Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982). The President's constitutional primacy flows from both his unique position in the constitutional structure, and from the specific grants of authority in Article II that make the President both the Chief Executive of the Nation and the Commander in Chief. See Nixon v. Fitzgerald, 457 U.S. 731, 749-50 (1982). Due to the President's constitutionally superior position, the Supreme Court has consistently "recognized 'the generally accepted view that foreign policy [is] the province and responsibility of the Executive.'" Department of the Navy v. Egan, 484 U.S. 518, 529 (1988) (quoting Haig v. Agee, 453 U.S. at 293-94). "The Founders in their wisdom made [the President] not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs," possessing "vast powers in relation to the outside world." Ludecke v. Watkins, 335 U.S. 160, 173 (1948). This foreign affairs power is exclusive: it is "the very delicate, plenary and exclusive power of the President as sole organ of the federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).
Conducting military hostilities is a central tool for the exercise of the President's plenary control over the conduct of foreign policy. There can be no doubt that the use of force protects the Nation's security and helps it achieve its foreign policy goals. Construing the Constitution to grant such power to another branch could prevent the President from exercising his core constitutional responsibilities in foreign affairs. Even in the cases in which the Supreme Court has limited executive authority, it has also emphasized that we should not construe legislative prerogatives to prevent the executive branch "from accomplishing its constitutionally assigned functions." Nixon v. Administrator of General Servs., 433 U.S. 425, 443 (1977).
II.
Executive Branch Construction and Practice. The position we take here has long represented the view of the executive branch and of the Department of Justice. Attorney General (later Justice) Robert Jackson formulated the classic statement of the executive branch's understanding of the President's military powers in 1941:
Article II, section 2, of the Constitution provides that the President "shall be Commander in Chief of the Army and Navy of the United States." By virtue of this constitutional office he has supreme command over the land and naval forces of the country and may order them to perform such military duties as, in his opinion, are necessary or appropriate for the defense of the United States. These powers exist in time of peace as well as in time of war.
. . . .
Thus the President's responsibility as Commander in Chief embraces the authority to command and direct the armed forces in their immediate movements and operations designed to protect the security and effectuate the defense of the United States. . . . [T]his authority undoubtedly includes the power to dispose of troops and equipment in such manner and on such duties as best to promote the safety of the country.
Training of British Flying Students in the United States, 40 Op. Att'y Gen. 58, 61-62 (1941).(11) Other Attorneys General have defended similar accounts of the President constitutional powers and duties, particularly in times of unforeseen emergencies.
Attorney General William P. Barr, quoting the opinion of Attorney General Jackson just cited, advised the President in 1992 that "[y]ou have authority to commit troops overseas without specific prior Congressional approval 'on missions of good will or rescue, or for the purpose of protecting American lives or property or American interests.'" Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. at 6 (citation omitted).
Attorney General (later Justice) Frank Murphy, though declining to define precisely the scope of the President's independent authority to act in emergencies or states of war, stated that:
the Executive has powers not enumerated in the statutes - powers derived not from statutory grants but from the Constitution. It is universally recognized that the constitutional duties of the Executive carry with them the constitutional powers necessary for their proper performance. These constitutional powers have never been specifically defined, and in fact cannot be, since their extent and limitations are largely dependent upon conditions and circumstances. . . . The right to take specific action might not exist under one state of facts, while under another it might be the absolute duty of the Executive to take such action.
Request of the Senate for an Opinion as to the Powers of the President "In Emergency or State of War," 39 Op. Att'y Gen. 343, 347-48 (1939).
Attorney General Thomas Gregory opined in 1914 that "[i]n the preservation of the safety and integrity of the United States and the protection of its responsibilities and obligations as a sovereignty, [the President's] powers are broad." Censorship of Radio Stations, 30 Op. Att'y Gen. 291, 292 (1914).
Finally, in 1898, Acting Attorney General John K. Richards wrote:
The preservation of our territorial integrity and the protection of our foreign interests is intrusted, in the first instance, to the President. . . . In the protection of these fundamental rights, which are based upon the Constitution and grow out of the jurisdiction of this nation over its own territory and its international rights and obligations as a distinct sovereignty, the President is not limited to the enforcement of specific acts of Congress. [The President] must preserve, protect, and defend those fundamental rights which flow from the Constitution itself and belong to the sovereignty it created.
Foreign Cables, 22 Op. Att'y Gen. 13, 25-26 (1898). Acting Attorney General Richards cited, among other judicial decisions, Cunningham v. Neagle, 135 U.S. 1, 64 (1890), in which the Supreme Court stated that the President's power to enforce the laws of the United States "include[s] the rights, duties and obligations growing out of the constitution itself, our international relations, and all the protection implied by the nature of the government under the constitution."
Opinions of the Office of Legal Counsel. Our Office has taken the position in recent Administrations, including those of Presidents Clinton, Bush, Reagan, Carter, and Nixon, that the President may unilaterally deploy military force in order to protect the national security and interests of the United States.
In 1995, we opined that the President "acting without specific statutory authorization, lawfully may introduce United States ground troops into Bosnia and Herzegovina . . . to help the North Atlantic Treaty Organization . . . ensure compliance with the recently negotiated peace agreement." Proposed Deployment of United States Armed Forces in Bosnia and Herzegovina, 19 Op. O.L.C. 327, 327 (1995) (the "Bosnia Opinion"). We interpreted the WPR to "lend[] support to the . . . conclusion that the President has authority, without specific statutory authorization, to introduce troops into hostilities in a substantial range of circumstances." Id. at 335.
In Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173 (1994), we advised that the President had the authority unilaterally to deploy some 20,000 troops into Haiti. We relied in part on the structure of the WPR, which we argued "makes sense only if the President may introduce troops into hostilities or potential hostilities without prior authorization by the Congress." Id. at 175-76. We further argued that "in establishing and funding a military force that is capable of being projected anywhere around the globe, Congress has given the President, as Commander in Chief, considerable discretion in deciding how that force is to be deployed." Id. at 177. We also cited and relied upon the past practice of the executive branch in undertaking unilateral military interventions:
In 1940, after the fall of Denmark to Germany, President Franklin Roosevelt ordered United States troops to occupy Greenland, a Danish possession in the North Atlantic of vital strategic interest to the United States. . . . Congress was not consulted or even directly informed. . . . Later, in 1941, the President ordered United States troops to occupy Iceland, an independent nation, pursuant to an agreement between himself and the Prime Minister of Iceland. The President relied upon his authority as Commander in Chief, and notified Congress only after the event. . . . More recently, in 1989, at the request of President Corazon Aquino, President Bush authorized military assistance to the Philippine government to suppress a coup attempt.
Id. at 178.
In Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. at 8, our Office advised that the President had the constitutional authority to deploy United States Armed Forces into Somalia in order to assist the United Nations in ensuring the safe delivery of relief to distressed areas of that country. We stated that "the President's role under our Constitution as Commander in Chief and Chief Executive vests him with the constitutional authority to order United States troops abroad to further national interests such as protecting the lives of Americans overseas." Id. at 8. Citing past practice (further discussed below), we pointed out that
[f]rom the instructions of President Jefferson's Administration to Commodore Richard Dale in 1801 to 'chastise' Algiers and Tripoli if they continued to attack American shipping, to the present, Presidents have taken military initiatives abroad on the basis of their constitutional authority. . . . Against the background of this repeated past practice under many Presidents, this Department and this Office have concluded that the President has the power to commit United States troops abroad for the purpose of protecting important national interests.
Id. at 9 (citations omitted).
In Overview of the War Powers Resolution, 8 Op. O.L.C. 271, 275 (1984), we noted that "[t]he President's authority to deploy armed forces has been exercised in a broad range of circumstances [in] our history."
In Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185, 187 (1980), we stated that
[o]ur history is replete with instances of presidential uses of military force abroad in the absence of prior congressional approval. This pattern of presidential initiative and congressional acquiescence may be said to reflect the implicit advantage held by the executive over the legislature under our constitutional scheme in situations calling for immediate action. Thus, constitutional practice over two centuries, supported by the nature of the functions exercised and by the few legal benchmarks that exist, evidences the existence of broad constitutional power.
In light of that understanding, we advised that the President had independent constitutional authority unilaterally to order "(1) deployment abroad at some risk of engagement - for example, the current presence of the fleet in the Persian Gulf region; (2) a military expedition to rescue the hostages or to retaliate against Iran if the hostages are harmed; (3) an attempt to repel an assault that threatens our vital interests in that region." Id. at 185-86. See also Presidential Powers Relating to the Situation in Iran, 4A Op. O.L.C. 115, 121 (1979) ("It is well established that the President has the constitutional power as Chief Executive and Commander-in-Chief to protect the lives and property of Americans abroad. This understanding is reflected in judicial decisions
. . . and recurring historic practice which goes back to the time of Jefferson.").
Finally, in the Rehnquist Memo at 8, we concluded that the President as Commander in Chief had the authority "to commit military forces of the United States to armed conflict . . . to protect the lives of American troops in the field."
Judicial Construction. Judicial decisions since the beginning of the Republic confirm the President's constitutional power and duty to repel military action against the United States through the use of force, and to take measures to deter the recurrence of an attack. As Justice Joseph Story said long ago, "[i]t may be fit and proper for the government, in the exercise of the high discretion confided to the executive, for great public purposes, to act on a sudden emergency, or to prevent an irreparable mischief, by summary measures, which are not found in the text of the laws." The Apollon, 22 U.S. (9 Wheat.) 362, 366-67 (1824). The Constitution entrusts the "power [to] the executive branch of the government to preserve order and insure the public safety in times of emergency, when other branches of the government are unable to function, or their functioning would itself threaten the public safety." Duncan v. Kahanamoku, 327 U.S. 304, 335 (1946) (Stone, C.J., concurring).
If the President is confronted with an unforeseen attack on the territory and people of the United States, or other immediate, dangerous threat to American interests and security, the courts have affirmed that it is his constitutional responsibility to respond to that threat with whatever means are necessary, including the use of military force abroad. See, e.g., Prize Cases, 67 U.S. at 635 ("If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force . . . without waiting for any special legislative authority."); Kahanamoku, 327 U.S. at 336 (Stone, C.J., concurring) ("Executive has broad discretion in determining when the public emergency is such as to give rise to the necessity" for emergency measures); United States v. Smith, 27 F. Cas. 1192, 1230 (C.C.D.N.Y. 1806) (No. 16,342) (Paterson, Circuit Justice) (regardless of statutory authorization, it is "the duty . . . of the executive magistrate . . . to repel an invading foe") (12); Mitchell v. Laird, 488 F.2d 611, 613 (D.C. Cir. 1973) ("there are some types of war which without Congressional approval, the President may begin to wage: for example, he may respond immediately without such approval to a belligerent attack") (13); see also Campbell v. Clinton, 203 F.3d 19, 27 (D.C. Cir.) (Silberman, J. concurring) ("[T]he President has independent authority to repel aggressive acts by third parties even without specific statutory authorization."), cert. denied, 531 U.S. 815 (2000);id. at 40 (Tatel, J., concurring) ("[T]he President, as Commander in Chief, possesses emergency authority to use military force to defend the nation from attack without obtaining prior congressional approval."); Story, supra note 9, § 1485 ("[t]he command and application of the public force . . . to maintain peace, and to resist foreign invasion" are executive powers).
III.
The historical practice of all three branches confirms the lessons of the constitutional text and structure. The normative role of historical practice in constitutional law, and especially with regard to separation of powers, is well settled. (14) Both the Supreme Court and the political branches have often recognized that governmental practice plays a highly significant role in establishing the contours of the constitutional separation of powers: "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on 'executive Power' vested in the President by § 1 of Art. II." Youngstown Sheet & Tube Co., 343 U.S. at 610-11 (Frankfurter, J., concurring). Indeed, as the Court has observed, the role of practice in fixing the meaning of the separation of powers is implicit in the Constitution itself: "'the Constitution . . . contemplates that practice will integrate the dispersed powers into a workable government.'" Mistretta v. United States, 488 U.S. 361, 381 (1989) (citation omitted). In addition, governmental practice enjoys significant weight in constitutional analysis for practical reasons, on "the basis of a wise and quieting rule that, in determining . . . the existence of a power, weight shall be given to the usage itself - even when the validity of the practice is the subject of investigation." United States v. Midwest Oil Co., 236 U.S. 459, 473 (1915).
The role of practice is heightened in dealing with issues affecting foreign affairs and national security, where "the Court has been particularly willing to rely on the practical statesmanship of the political branches when considering constitutional questions." Whether Uruguay Round Agreements Required Ratification as a Treaty, 18 Op. O.L.C. 232, 234 (1994). "The persistence of these controversies (which trace back to the eighteenth century), and the nearly complete absence of judicial decisions resolving them, underscore the necessity of relying on congressional precedent to interpret the relevant constitutional provisions." Id. at 236. Accordingly, we give considerable weight to the practice of the political branches in trying to determine the constitutional allocation of warmaking powers between them.
The historical record demonstrates that the power to initiate military hostilities, particularly in response to the threat of an armed attack, rests exclusively with the President. As the Supreme Court has observed, "[t]he United States frequently employs Armed Forces outside this country - over 200 times in our history - for the protection of American citizens or national security." United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990). On at least 125 such occasions, the President acted without prior express authorization from Congress. See Bosnia Opinion, 19 Op. O.L.C. at 331. Such deployments, based on the President's constitutional authority alone, have occurred since the Administration of George Washington. See David P. Currie, The Constitution in Congress: Substantive Issues in the First Congress, 1789-1791, 61 U. Chi. L. Rev. 775, 816 (1994) ("[B]oth Secretary [of War] Knox and [President] Washington himself seemed to think that this [Commander in Chief] authority extended to offensive operations taken in retaliation for Indian atrocities.") (quoted in Bosnia Opinion, 19 Op. O.L.C. at 331 n.4. Perhaps the most significant deployment without specific statutory authorization took place at the time of the Korean War, when President Truman, without prior authorization from Congress, deployed United States troops in a war that lasted for over three years and caused over 142,000 American casualties. See Bosnia Opinion, 19 Op. O.L.C. at 331-32 n.5.
Recent deployments ordered solely on the basis of the President's constitutional authority have also been extremely large, representing a substantial commitment of the Nation's military personnel, diplomatic prestige, and financial resources. On at least one occasion, such a unilateral deployment has constituted full-scale war. On March 24, 1999, without any prior statutory authorization and in the absence of an attack on the United States, President Clinton ordered hostilities to be initiated against the Republic of Yugoslavia. The President informed Congress that, in the initial wave of air strikes, "United States and NATO forces have targeted the [Yugoslavian] government's integrated air defense system, military and security police command and control elements, and military and security police facilities and infrastructure. . . . I have taken these actions pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive." Letter to Congressional leaders reporting on airstrikes against Serbian targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 1 Pub. Papers of William Jefferson Clinton 459, 459 (1999). Bombing attacks against targets in both Kosovo and Serbia ended on June 10, 1999, seventy-nine days after the war began. More than 30,000 United States military personnel participated in the operations; some 800 U.S. aircraft flew more than 20,000 sorties; more than 23,000 bombs and missiles were used. As part of the peace settlement, NATO deployed some 50,000 troops into Kosovo, 7,000 of them American. (15) In a News Briefing on June 10, 1999, Secretary of Defense William S. Cohen summarized the effects of the campaign by saying,
[t]hree months ago Yugoslavia was a heavily armed country with a significant air defense system. We reduced that defense system threat by destroying over 80 percent of Yugoslavia's modern aircraft fighters and strategic suface-to-air missiles. NATO destroyed a significant share of the infrastructure Yugoslavia used to support[] its military with, we reduced his capacity to make ammunition by two-thirds, and we eliminated all of its oil refining capacity and more than 40 percent of its military fuel supplies, Most important, we severely crippled the military forces in Kosovo by destroying more than 50 percent of the artillery and more than one-third of the armored vehicles. (16)
General Shelton of the Joint Chiefs of Staff reported that "about half of [Yugoslavia's] defense industry has either been damaged or destroyed. . . . [A]viation, 70 percent; armored vehicle production, 40 [percent]; petroleum refineries, 100 percent down; explosive production, about 50 percent; and 65 percent of his ammunition. . . . For the most part Belgrade is a city that's got about probably 70 percent without [electrical] power." (17) A report by General Ryan, Air Force Chief of Staff, on June 8, 1999, stated that
Serbia's air force is essentially useless and its air defenses are dangerous but ineffective. Military armament production is destroyed. Military supply areas are under siege. Oil refinement has ceased and petroleum storage is systematically being destroyed. Electricity is sporadic, at best. Major transportation routes are cut. NATO aircraft are attacking with impunity throughout the country. (18)
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PART 2 OF 2 (MEMO 1 CONT'D.)
Estimates near the time placed the number of Yugoslav military casualties at between five and ten thousand. (19) In recent decades, no President has unilaterally deployed so much force abroad.
Other recent unilateral deployments have also been significant in military, foreign policy, and financial terms. Several such deployments occurred in the Balkans in the mid-1990s. (20) In December 1995, President Clinton ordered the deployment of 20,000 United States troops to Bosnia to implement a peace settlement. In February 1994, sixty United States warplanes conducted airstrikes against Yugoslav targets. In 1993, United States warplanes were sent to enforce a no-fly zone over Bosnia; in the same year, the President despatched United States troops to Macedonia as part of a United Nations peacekeeping operation.
Major recent deployments have also taken place in Central America and in the Persian Gulf. In 1994, President Clinton ordered some 20,000 United States troops to be deployed into Haiti, again without prior statutory authorization from Congress, in reliance solely upon his Article II authority. See Deployment of United States Armed Forces into Haiti, supra. On August 8, 1990, in response to the Iraqi invasion of Kuwait and the consequent threat to Saudi Arabia, President Bush ordered the deployment of substantial forces into Saudi Arabia in Operation Desert Shield. The forces were equipped for combat and included two squadrons of F-15 aircraft and a brigade of the 82d Airborne Division; the deployment eventually grew to several hundred thousand. The President informed Congress that he had taken these actions "pursuant to my constitutional authority to conduct our foreign relations and as Commander in Chief." Letter to Congressional Leaders, 2 Pub. Papers of George Bush 1116 (1990). President Bush also deployed some 15,000 troops into Panama in December, 1990, for the purpose (among others) of protecting Americans living in Panama. See 2 Pub. Papers of George Bush 1722 (1989); see generally Abraham D. Sofaer, The Legality of the United States Action in Panama, 29 Colum. J. Transnat'l L. 281 (1991).
Further, when Congress has in fact authorized deployments of troops in hostilities, past Presidents have taken the position that such legislation, although welcome, was not constitutionally necessary. For example, in signing Pub. L. No. 102-01, 105 Stat. 3 (1991), authorizing the use of military force in Operation Desert Storm against Iraq, President Bush stated that "my request for congressional support did not, and my signing this resolution does not, constitute any change in the longstanding positions of the executive branch on either the President's constitutional authority to use the Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers Resolution." Statement on Signing the Resolution Authorizing the Use of Military Force Against Iraq, 1 Pub. Papers of George Bush 40 (1991). (21) Similarly, President John F. Kennedy stated on September 13, 1962, that congressional authorization for a naval blockade of Cuba was unnecessary, maintaining that "I have full authority now to take such action." Pub. Papers of John F. Kennedy 674 (1962). And in a Report to the American People on October 22, 1962, President Kennedy asserted that he had ordered the blockade "under the authority entrusted to me by the Constitution as endorsed by the resolution of the Congress." Id. at 807 (emphasis added). (22) Thus, there is abundant precedent, much of it from recent Administrations, for the deployment of military force abroad, including the waging of war, on the basis of the President's sole constitutional authority.
Several recent precedents stand out as particularly relevant to the situation at hand, where the conflict is with terrorists. The first and most relevant precedent is also the most recent: the military actions that President William J. Clinton ordered on August 20, 1998, against terrorist sites in Afghanistan and Sudan. The second is the strike on Iraqi Intelligence Headquarters that President Clinton ordered on June 26, 1993. The third is President Ronald Reagan's action on April 14, 1986, ordering United States armed forces to attack selected targets at Tripoli and Benghazi, Libya.
(A) On August 20, 1998, President Clinton ordered the Armed Forces to strike at terrorist-related facilities in Afghanistan and Sudan "because of the threat they present to our national security." Remarks in Martha's Vineyard, Massachusetts, on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 Pub. Papers of William J. Clinton 1460 (1998). The President stated that the purpose of the operation was "to strike at the network of radical groups affiliated with and funded by Usama bin Ladin, perhaps the preeminent organizer and financier of international terrorism in the world today." Address to the Nation on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 Pub. Papers of William J. Clinton 1460 (1998). The strike was ordered in retaliation for the bombings of United States Embassies in Kenya and Tanzania, in which bin Laden's organization and groups affiliated with it were believed to have played a key role and which had caused the deaths of some 12 Americans and nearly 300 Kenyans and Tanzanians, and in order to deter later terrorist attacks of a similar kind against United States nationals and others. In his remarks at Martha's Vineyard, President Clinton justified the operation as follows:
Id. In his Address to the Nation on the same day, the President made clear that the strikes were aimed, not only at bin Laden's organization, but at other terrorist groups thought to be affiliated with it, and that the strikes were intended as retribution for other incidents caused by these groups, and not merely the then-recent bombings of the two United States embassies. Referring to the past acts of the interlinked terrorist groups, he stated:
Id. at 1460-61. Furthermore, in explaining why military action was necessary, the President noted that "law enforcement and diplomatic tools" to combat terrorism had proved insufficient, and that "when our very national security is challenged . . . we must take extraordinary steps to protect the safety of our citizens." Id. at 1461. Finally, the President made plain that the action of the two targeted countries in harboring terrorists justified the use of military force on their territory: "The United States does not take this action lightly. Afghanistan and Sudan have been warned for years to stop harboring and supporting these terrorist groups. But countries that persistently host terrorists have no right to be safe havens." Id.
The terrorist incidents of September 11, 2001, were surely far graver a threat to the national security of the United States than the 1998 attacks on our embassies (however appalling those events were). The President's power to respond militarily to the later attacks must be correspondingly broader. Nonetheless, President Clinton's action in 1998 illustrates some of the breadth of the President's power to act in the present circumstances.
First, President Clinton justified the targeting of particular groups on the basis of what he characterized as "convincing" evidence of their involvement in the embassy attacks. While that is not a standard of proof appropriate for a criminal trial, it is entirely appropriate for military and political decisionmaking. Second, the President targeted not merely one particular group or leader, but a network of affiliated groups. Moreover, he ordered the action, not only because of particular attacks on United States embassies, but because of a pattern of terrorist activity, aimed at both Americans and non-Americans, that had unfolded over several years. Third, the President explained that the military action was designed to deter future terrorist incidents, not only to punish past ones. Fourth, the President specifically justified military action on the territory of two foreign states because their governments had "harbor[ed]" and "support[ed]" terrorist groups for years, despite warnings from the United States.
(B) On June 26, 1993, President Clinton ordered a Tomahawk cruise missile strike on Iraqi Intelligence Service (the "IIS") headquarters in Baghdad. The IIS had planned an unsuccessful attempt to assassinate former President Bush in Kuwait in April, 1993. Two United States Navy surface ships launched a total of 23 missiles against the IIS center.
In a Letter to Congressional Leaders on the Strike on Iraqi Intelligence Headquarters, 1 Pub. Papers of William J. Clinton 940 (1993), the President referred to the failed assassination attempt and stated that "[t]he evidence of the Government of Iraq's violence and terrorism demonstrates that Iraq poses a continuing threat to United States nationals." He based his authority to order a strike against the Iraqi government's intelligence command center on "my constitutional authority with respect to the conduct of foreign relations and as Commander in Chief," as well as on the Nation's inherent right of self-defense. Id.
President Clinton's order was designed in part to deter and prevent future terrorist attacks on the United States - and most particularly future assassination attempts on former President Bush. Although the assassination attempt had been frustrated by the arrest of sixteen suspects before any harm was done, "nothing prevented Iraq from directing a second - possibly successful - attempt on Bush's life. Thus, the possibility of another assassination plot was 'hanging threateningly over [Bush's] head' and was therefore imminent. By attacking the Iraqi Intelligence Service, the United States hoped to prevent and deter future attempts to kill Bush." (23)
(C) On April 14, 1986, President Ronald Reagan, acting on his independent authority, ordered United States armed forces to engage in military action against the government of Colonel Gadhafi of Libya. (24) Thirty-two American aircraft attacked selected targets at Tripoli and Benghazi, Libya. Libyan officials reported thirty-seven people killed and an undetermined number injured. More than sixty tons of ordnance were used during the attack.
For some time Libya had supported terrorist groups and organizations and indeed had itself ordered direct terrorist attacks on the United States.
It had harbored a variety of terrorists, including Abu Nidal and the three surviving members of the Black September group that had killed eleven Israeli athletes at the 1972 Munich Olympic Games. (26) Libya's attacks on the United States included the murder of two United States diplomats in Khartoum (1973), the attempted assassination of Secretary of State Kissinger (1973), the burning of the United States Embassy in Tripoli (1979), the planned assassination of President Reagan, Secretary of State Haig, Secretary of Defense Weinberger, and Ambassador to Italy Robb (1981), and the hijacking of T.W.A. flight 847 (1985). (27) Libya had also been linked to terrorist events close to the time of the April, 1986, airstrike in which Americans and other had lost their lives. In January, 1986, American intelligence tied Libya to the December 27, 1985, bombings at the Rome and Vienna airports in which nineteen people, including 5 Americans, had died, and one hundred and twelve persons had been injured.
The particular event that triggered the President's military action had occurred on April 5, 1986, when a bomb exploded in the "Labelle," a Berlin discotheque frequented by U.S. military personnel. The blast killed three people (two Americans) and injured two hundred and thirty others (including seventy-nine Americans). Intelligence reports indicated that the bombing was planned and executed under the direct orders of the Government of Libya. The United States Ambassador to the United Nations stated that there was "direct, precise, and irrefutable evidence that Libya bears responsibility" for the bombing of the discotheque; that the "Labelle" incident was "only the latest in an ongoing pattern of attacks" by Libya against the United States and its allies; and that the United States had made "repeated and protracted efforts to deter Libya from its ongoing attacks," including "quiet diplomacy, public condemnation, economic sanctions, and demonstrations of military force." U.N. SCOR, 2674th mtg. at 16-17, U.N. Doc. S/PV.2674 (prov. ed. 1986).
Like the two unilateral Presidential actions discussed above, President Reagan's decision to use armed force in response to a terrorist attack on United States military personnel illustrates that the President has independent constitutional authority to use such force in the present circumstances.
IV.
Our analysis to this point has surveyed the views and practice of the executive and judicial branches. In two enactments, the War Powers Resolution and the recent Joint Resolution, Congress has also addressed the scope of the President's independent constitutional authority. We think these two statutes demonstrate Congress's acceptance of the President's unilateral war powers in an emergency situation like that created by the September 11 incidents.
Furthermore, the President can be said to be acting at the apogee of his powers if he deploys military force in the present situation, for he is operating both under his own Article II authority and with the legislative support of Congress. Under the analysis outlined by Justice Jackson in Youngstown Sheet & Tube Co., supra (and later followed and interpreted by the Court in Dames & Moore, supra), the President's power in this case would be "at its maximum," 343 U.S. at 635 (Jackson, J., concurring), because the President would be acting pursuant to an express congressional authorization. He would thus be clothed with "all [authority] that he possesses in his own right plus all that Congress can delegate," id., in addition to his own broad powers in foreign affairs under Article II of the Constitution.
50 U.S.C. § 1541(c) (emphasis added).
The executive branch consistently "has taken the position from the very beginning that section 2(c) of the WPR does not constitute a legally binding definition of Presidential authority to deploy our armed forces." Overview of the War Powers Resolution, 8 Op. O.L.C. at 274. (28) Moreover, as our Office has noted, "even the defenders of the WPR concede that this declaration [in section 2(c)] - found in the 'Purpose and Policy' section of the WPR - either is incomplete or is not meant to be binding." Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. at 176; accord Bosnia Opinion, 19 Op. O.L.C. at 335 ("The executive branch has traditionally taken the position that the President's power to deploy armed forces into situations of actual or indicated hostilities is not restricted to the three categories specifically marked out by the Resolution."); Presidential Powers Relating to the Situation in Iran, 4A Op. O.L.C. at 121 ("[T]he Resolution's policy statement is not a comprehensive or binding formulation of the President's powers as Commander-in-Chief."). Nonetheless, section 2(c)(3) correctly identifies one, but by no means the only, Presidential authority to deploy military forces into hostilities. (29) In the present circumstances, the statute signifies Congress's recognition that the President's constitutional authority alone would enable him to take military measures to combat the organizations or groups responsible for the September 11 incidents, together with any governments that may have harbored or supported them.
Further, Congress's support for the President's power suggests no limits on the Executive's judgment whether to use military force in response to the national emergency created by those incidents. Section 2(c)(3) leaves undisturbed the President's constitutional authority to determine both when a "national emergency" arising out of an "attack against the United States" exists, and what types and levels of force are necessary or appropriate to respond to that emergency. Because the statute itself supplies no definition of these terms, their interpretation must depend on longstanding constitutional practices and understandings. As we have shown in Parts I-III of this memorandum, constitutional text, structure and practice demonstrate that the President is vested with the plenary power to use military force, especially in the case of a direct attack on the United States. Section 2(c)(3) recognizes the President's broad authority and discretion in this area.
Given the President's constitutional powers to respond to national emergencies caused by attacks on the United States, and given also that section 2(c)(3) of the WPR does not attempt to define those powers, we think that that provision must be construed simply as a recognition of, and support for, the President's pre-existing constitutional authority. Moreover, as we read the WPR, action taken by the President pursuant to the constitutional authority recognized in section 2(c)(3) cannot be subject to the substantive requirements of the WPR, particularly the interrelated reporting requirements in section 4 and the "cut off" provisions of section 5, 50 U.S.C. §§ 1543-1544. (30) Insofar as the Constitution vests the power in the President to take military action in the emergency circumstances described by section 2(c)(3), we do not think it can be restricted by Congress through, e.g., a requirement that the President either obtain congressional authorization for the action within a specific time frame, or else discontinue the action. Were this not so, the President could find himself unable to respond to an emergency that outlasted a statutory cut-off, merely because Congress had failed, for whatever reason, to enact authorizing legislation within that period.
To be sure, some interpreters of the WPR take a broader view of its scope. But on any reasonable interpretation of that statute, it must reflect an explicit understanding, shared by both the Executive and Congress, that the President may take some military actions - including involvement in hostilities - in response to emergencies caused by attacks on the United States. Thus, while there might be room for disagreement about the scope and duration of the President's emergency powers, there can be no reasonable doubt as to their existence.
The Joint Resolution of September 14, 2001. Whatever view one may take of the meaning of section 2(c)(3) of the WPR, we think it clear that Congress, in enacting the "Joint Resolution [t]o authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States," Pub. L. No. 107-40, 115 Stat. 224 (2001), has confirmed that the President has broad constitutional authority to respond, by military means or otherwise, to the incidents of September 11.
First, the findings in the Joint Resolution include an express statement that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." Id. This authority is in addition to the President's authority to respond to past acts of terrorism. In including this statement, Congress has provided its explicit agreement with the executive branch's consistent position, as articulated in Parts I-III of this memorandum, that the President has the plenary power to use force even before an attack upon the United States actually occurs, against targets and using methods of his own choosing.
Second, Congress also found that there is a "threat to the national security and foreign policy of the United States posed by the[] grave acts of violence" on September 11, and that "such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy" of this country. Insofar as "the President's independent power to act depends upon the gravity of the situation confronting the nation," Youngstown Sheet & Tube Co., 343 U.S. at 662 (Clark, J., concurring in judgment), these findings would support any presidential determination that the September 11 attacks justified the use of military force in response. Further, they would buttress any Presidential determination that the nation is in a state of emergency caused by those attacks. The Constitution confides in the President the authority, independent of any statute, to determine when a "national emergency" caused by an attack on the United States exists. (31) Nonetheless, congressional concurrence is welcome in making clear that the branches agree on seriousness of the terrorist threat currently facing the Nation and on the justifiability of a military response.
Third, it should be noted here that the Joint Resolution is somewhat narrower than the President's constitutional authority. The Joint Resolution's authorization to use force is limited only to those individuals, groups, or states that planned, authorized, committed, or aided the attacks, and those nations that harbored them. It does not, therefore, reach other terrorist individuals, groups, or states, which cannot be determined to have links to the September 11 attacks. Nonetheless, the President's broad constitutional power to use military force to defend the Nation, recognized by the Joint Resolution itself, would allow the President to take whatever actions he deems appropriate to pre-empt or respond to terrorist threats from new quarters.
Conclusion
In light of the text, plan, and history of the Constitution, its interpretation by both past Administrations and the courts, the longstanding practice of the executive branch, and the express affirmation of the President's constitutional authorities by Congress, we think it beyond question that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001. Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon: the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas. (32) In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.
JOHN C. YOO
Deputy Assistant Attorney General
Office of Legal Counsel
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Notes:
1. "As Lincoln aptly said, '[is] it possible to lose the nation and yet preserve the Constitution?'" Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 662 (1952) (Clark, J., concurring in judgment).
2. See also The Federalist No. 34, at 175 (Alexander Hamilton) (Federal government is to possess "an indefinite power of providing for emergencies as they might arise"); id. No. 41, at 224 (James Madison) ("Security against foreign danger is one of the primitive objects of civil society. . . . The powers requisite for attaining it must be effectually confided to the foederal councils."). Many Supreme Court opinions echo Hamilton's argument that the Constitution presupposes the indefinite and unpredictable nature of the "the circumstances which may affect the public safety," and that the federal government's powers are correspondingly broad. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 662 (1981) (noting that the President "exercis[es] the executive authority in a world that presents each day some new challenge with which he must deal"); Hamilton v. Regents, 293 U.S. 245, 264 (1934) (federal government's war powers are "well-nigh limitless" in extent); Stewart v. Kahn, 78 U.S. (11Wall.) 493, 506 (1870) ("The measures to be taken in carrying on war . . . are not defined [in the Constitution]. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution."); Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1870) ("The Constitution confers upon Congress expressly power to declare war, grant letters of marque and reprisal, and make rules respecting captures on land and water. Upon the exercise of these powers no restrictions are imposed. Of course the power to declare war involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted.").
3. See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (President has authority to deploy United States armed forces "abroad or to any particular region"); Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850) ("As commander-in-chief, [the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual"); Loving v. United States, 517 U.S. 748, 776 (1996) (Scalia, J., concurring in part and concurring in judgment) (The "inherent powers" of the Commander in Chief "are clearly extensive."); Maul v. United States, 274 U.S. 501, 515-16 (1927) (Brandeis & Holmes, JJ., concurring) (President "may direct any revenue cutter to cruise in any waters in order to perform any duty of the service"); Massachusetts v. Laird, 451 F.2d 26, 32 (1st Cir. 1971) (the President has "power as Commander-in-Chief to station forces abroad"); Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6 (1992).
4. See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 196-241 (1996).
5. See id. ("He must determine what degree of force the crisis demands."); see also Eisentrager, 339 U.S. at 789 ("Certainly it is not the function of the Judiciary to entertain private litigation - even by a citizen - which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region."); Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948) ("The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret."); Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1561 (D.C. Cir. 1984) (Scalia, J., dissenting), vacated by 471 U.S. 1113 (1985); Ex parte Vallandigham, 28 F.Cas. 874, 922 (C.C.S.D. Ohio 1863) (No. 16,816) (in acting "under this power where there is no express legislative declaration, the president is guided solely by his own judgment and discretion"); Hefleblower v. United States, 21 Ct. Cl. 228, 238 (Ct. Cl. 1886) ("The responsibility of declaring what portions of the country were in insurrection and of declaring when the insurrection came to an end was accorded to the President; when he declared a portion of the country to be in insurrection the judiciary cannot try the issue and find the territory national; conversely, when the President declared the insurrection at an end in any portion of the country, the judiciary cannot try the issue and find the territory hostile."); cf. United States v. Chemical Found., Inc., 272 U.S. 1, 12 (1926) ("It was peculiarly within the province of the Commander-in-Chief to know the facts and to determine what disposition should be made of enemy properties in order effectively to carry on the war.")
6. See, e.g., Louis Fisher, Presidential War Power 185-206 (1995); John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath 3-5 (1993); Michael J. Glennon, Constitutional Diplomacy 80-84 (1990); Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs 109 (1990); Harold Hongju Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair 158-61 (1990); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law (2d ed. 1989).
Other scholars, however, have argued that the President has the constitutional authority to initiate military hostilities without prior congressional authorization. See, e.g., Edward S. Corwin, The President: Office and Powers 1787-1984 (5th ed. 1984); Philip Bobbitt, War Powers: An Essay on John Hart Ely's "War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath," 92 Mich. L. Rev. 1364 (1994); Robert H. Bork, Erosion of the President's Power in Foreign Affairs, 68 Wash. U. L. Q. 693 (1990); Henry P. Monaghan, Presidential War-Making, 50 B.U.L. Rev. 19 (1970); W. Michael Reisman, Some Lessons from Iraq: International Law and Democratic Politics, 16 Yale J. Int'l L. 203 (1991); Eugene V. Rostow, "Once More unto the Breach:" The War Powers Resolution Revisited, 21 Val. U.L. Rev. 1 (1986); John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U. Pa. L. Rev. 1673 (2000); Yoo, supra n.4.
7. A subsequent version made clear "that the governor and commander-in-chief shall have no power to commence war, or conclude peace, or enter into any final treaty" without legislative approval. S.C. Const. art. XXXIII (1778), reprinted in 6 The Federal and State Constitutions 3255 (Francis Newton Thorpe ed., 1909).
8. Of the eight major wars fought by Great Britain prior to the ratification of the Constitution, war was declared only once before the start of hostilities. See Yoo, supra note 4, at 214-15. See also W. Taylor Reveley, III, War Powers of the President and Congress: Who Holds the Arrows and Olive Branch? 55 (1981) ("[U]ndeclared war was the norm in eighteenth-century European practice, a reality brought home to Americans when Britain's Seven Years' War with France began on this continent." ); William Michael Treanor, Fame, The Founding, and The Power to Declare War, 82 Cornell L. Rev. 695, 709 (1997).
9. James Iredell (later an Associate Justice of the Supreme Court) argued in the North Carolina Ratifying Convention that "[f]rom the nature of the thing, the command of armies ought to be delegated to one person only. The secrecy, despatch, and decision, which are necessary in military operations, can only be expected from one person." Debate in the North Carolina Ratifying Convention, in 4 Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, at 107 (2d ed. 1987). See also 3 Joseph Story, Commentaries on the Constitution of the United States § 1485 (1833) (in military matters, "[u]nity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when single magistrate is entrusted exclusively with the power").
10. Thus, Article II's enumeration of the Treaty and Appointments Clauses only dilutes the unitary nature of the executive branch in regard to the exercise of those powers, rather than transforming them into quasi-legislative functions. See Constitutionality of Proposed Conditions to Senate Consent to the Interim Convention on Conservation of North Pacific Fur Seals, 10 Op. O.L.C. 12, 17 (1986) ("Nothing in the text of the Constitution or the deliberations of the Framers suggests that the Senate's advice and consent role in the treaty-making process was intended to alter the fundamental constitutional balance between legislative authority and executive authority.").
11. At the time Attorney General Jackson delivered his opinion, the United States was a neutral, and thus his conclusions about the President's powers did not rest on any special considerations that might apply in time of war. Although he stated that he was "inclined to the opinion" that a statute (the Lend-Lease Act) authorized the decision under review, Jackson expressly based his conclusion on the President's constitutional authority. Id. at 61.
12. Justice Paterson went on to remark that in those circumstances "it would I apprehend, be not only lawful for the president to resist such invasion, but also to carry hostilities into the enemy's own country." Id. at 1230.
13. The court further observed that "in a grave emergency [the President] may, without Congressional approval, take the initiative to wage war. . . . In such unusual situations necessity confers the requisite authority upon the President. Any other construction of the Constitution would make it self-destructive." Id. at 613-14. Accord Massachusetts v. Laird, 451 F.2d at 31 ("[t]he executive may without Congressional participation repel attack").
14. As the Supreme Court has noted, "the decisions of the Court in th[e] area [of foreign affairs] have been rare, episodic, and afford little precedential value for subsequent cases." Dames & Moore, 453 U.S. at 661. In particular, the difficulty the courts experience in addressing "the broad range of vitally important day-to-day questions regularly decided by Congress or the Executive" with respect to foreign affairs and national security makes the judiciary "acutely aware of the necessity to rest [judicial] decision[s] on the narrowest possible ground capable of deciding the case." Id. at 660-61. Historical practice and the ongoing tradition of executive branch constitutional interpretation therefore play an especially important role in this area.
15. See Campbell v. Clinton, 203 F.3d at 40 (Tatel, J., concurring) (quoting testimony of Secretary of Defense Cohen that "'[w]e're certainly engaged in hostilities [in Yugoslavia], we're engaged in combat'"); Exec. Order No. 13119, 64 Fed. Reg. 18,797 (Apr. 16, 1999) (designating March 24, 1999, as "the date of the commencement of combatant activities" in Yugoslavia); John C. Yoo, US Wars, US War Powers, 1 Chi. J. Int'l L. 355 (2000).
16. News Briefing, Office of the Assistant Secretary of Defense (Public Affairs), June 10, 1999, available at http://www.defenselink.mil/news/Jun1999 ... 10asd.html (remarks of Sec. Cohen).
17. Id. (remarks of Gen. Shelton).
18. General Michael E. Ryan, It may take time, but it's inevitable, Air Force News (released June 8, 1999).
19. See Nick Cook, War of Extremes, in Jane's Defence Weekly (July 7, 1999), available at http://www.janes.com/defense/news/kosov ... 1__n.shtml.
20. See Yoo, supra n.15, at 359.
21. Further, in a press conference on January 9, 1991, President Bush was asked if he believed that he needed congressional authorization in order to begin offensive operations against Iraq. He answered, "I don't think I need it. I think Secretary Cheney expressed it very well the other day. There are different opinions on either side of this question, but Saddam Hussein should be under no question on this: I feel that I have the authority to fully implement the United Nations resolutions." The President's News Conference on the Persian Gulf Crisis, 1 Pub. Papers of George Bush 17, 20 (1991).
22. An unsigned, unaddressed opinion in this Office's files, entitled Blockade of Cuba (Oct. 19, 1962), states that "the President, in the exercise of his constitutional power as Commander-in-Chief, can order a blockade without prior Congressional sanction and without a declaration of war by Congress." Id. at 9. Thus, the writers of the memorandum (presumably, either this Office or the State Department Legal Adviser's Office) determined that no Congressional authorization either existed or was necessary for the blockade ordered by President Kennedy.
23. Robert F. Teplitz, Taking Assassination Attempts Seriously: Did the United States Violate International Law in Forcefully Responding to the Iraqi Plot to Kill George Bush?, 28 Cornell Int'l L. J. 569, 609 (1995) (citation omitted).
24. See generally Wallace F. Warriner, U.S.M.C., The Unilateral Use of Coercion Under International Law: A Legal Analysis of the United States Raid on Libya on April 14, 1986, 37 Naval L. Rev. 49 (1988); Teplitz, supra n.23, at 583-86.
25. Teplitz, supra n.23, at 617 n.112.
26. See id.
27. See id. at n.113.
28. Thus, the State Department took the view, in a letter of November 30, 1974, that section 2(c) was a "declaratory statement of policy." Further, in 1975, the Legal Adviser to the State Department listed six (non-exclusive) situations, not enumerated in section 2(c), in which the President had independent constitutional authority to deploy troops without either a declaration of war or specific statutory authorization. See id. at 274-75.
29. We note that section 2(c) cannot itself qualify as a statutory authorization to act in national emergencies. It is rather a congressional acknowledgment of the President's nonstatutory, Article II-based powers. Section 8(d)(2) of the WPR, 50 U.S.C. § 1547, specifically provides that nothing in the WPR "shall be construed as granting any authority to the President . . . which authority he would not have had in the absence of this [joint resolution]."
30. True, the reporting requirement in section 4(a)(1) purports to apply to any case in which U.S. armed forces are introduced into hostilities "[i]n the absence of a declaration of war." 50 U.S.C. § 1543(a)(1). Further, the "cut off" provisions of section 5 are triggered by the report required by section 4(a)(1). Thus, the language of the WPR indicates an intent to reach action taken by the President pursuant to the authority recognized in section 2(c)(3), if no declaration of war has been issued. We think, however, that it would be beyond Congress's power to regulate the President's emergency authority in the manner prescribed by sections 4(a)(1) and 5.
31. See Prize Cases, 67 U.S. at 670 (whether a state of belligerency justifying a blockade exists is to be decided by the President); see also Sterling v. Constantin, 287 U.S. 378, 399 (1932) ("By virtue of his duty to 'cause the laws to be faithfully executed', the Executive is appropriately vested with the discretion to determine whether an exigency requiring military aid for that purpose has arisen."); Moyer v. Peabody, 212 U.S. 78, 83 (1909) ("[T]he governor's declaration that a state of insurrection existed is conclusive of that fact."); Campbell, 203 F.3d at 26-27 (Silberman, J., concurring) (The Court in the Prize Cases "made clear that it would not dispute the President on measures necessary to repel foreign aggression"); cf. Martin v. Mott, 25 U.S. (12 Wheat.) 19, 30 (1827) (President had unreviewable discretion to determine when "emergency" existed under statute enabling him to call up militia).
32. We of course understand that terrorist organizations and their state sponsors operate by secrecy and concealment, and that it is correspondingly difficult to establish, by the standards of criminal law or even lower legal standards, that particular individuals or groups have been or may be implicated in attacks on the United States. Moreover, even when evidence sufficient to establish involvement is available to the President, it may be impossible for him to disclose that evidence without compromising classified methods and sources, and so damaging the security of the United States. See, e.g., Chicago & Southern Air Lines, Inc, 333 U.S. at 111 ("The President . . . has available intelligence services whose reports are not and ought not to be published to the world."); see also Ruth Wedgwood, Responding to Terrorism: The Strikes Against Bin Laden, 24 Yale J. Int'l L. 559, 568-74 (1999) (analyzing difficulties of establishing and publicizing evidence of causation of terrorist incidents). But we do not think that the difficulty or impossibility of establishing proof to a criminal law standard (or of making evidence public) bars the President from taking such military measures as, in his best judgment, he thinks necessary or appropriate to defend the United States from terrorist attacks. In the exercise of his plenary power to use military force, the President's decisions are for him alone and are unreviewable.
Estimates near the time placed the number of Yugoslav military casualties at between five and ten thousand. (19) In recent decades, no President has unilaterally deployed so much force abroad.
Other recent unilateral deployments have also been significant in military, foreign policy, and financial terms. Several such deployments occurred in the Balkans in the mid-1990s. (20) In December 1995, President Clinton ordered the deployment of 20,000 United States troops to Bosnia to implement a peace settlement. In February 1994, sixty United States warplanes conducted airstrikes against Yugoslav targets. In 1993, United States warplanes were sent to enforce a no-fly zone over Bosnia; in the same year, the President despatched United States troops to Macedonia as part of a United Nations peacekeeping operation.
Major recent deployments have also taken place in Central America and in the Persian Gulf. In 1994, President Clinton ordered some 20,000 United States troops to be deployed into Haiti, again without prior statutory authorization from Congress, in reliance solely upon his Article II authority. See Deployment of United States Armed Forces into Haiti, supra. On August 8, 1990, in response to the Iraqi invasion of Kuwait and the consequent threat to Saudi Arabia, President Bush ordered the deployment of substantial forces into Saudi Arabia in Operation Desert Shield. The forces were equipped for combat and included two squadrons of F-15 aircraft and a brigade of the 82d Airborne Division; the deployment eventually grew to several hundred thousand. The President informed Congress that he had taken these actions "pursuant to my constitutional authority to conduct our foreign relations and as Commander in Chief." Letter to Congressional Leaders, 2 Pub. Papers of George Bush 1116 (1990). President Bush also deployed some 15,000 troops into Panama in December, 1990, for the purpose (among others) of protecting Americans living in Panama. See 2 Pub. Papers of George Bush 1722 (1989); see generally Abraham D. Sofaer, The Legality of the United States Action in Panama, 29 Colum. J. Transnat'l L. 281 (1991).
Further, when Congress has in fact authorized deployments of troops in hostilities, past Presidents have taken the position that such legislation, although welcome, was not constitutionally necessary. For example, in signing Pub. L. No. 102-01, 105 Stat. 3 (1991), authorizing the use of military force in Operation Desert Storm against Iraq, President Bush stated that "my request for congressional support did not, and my signing this resolution does not, constitute any change in the longstanding positions of the executive branch on either the President's constitutional authority to use the Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers Resolution." Statement on Signing the Resolution Authorizing the Use of Military Force Against Iraq, 1 Pub. Papers of George Bush 40 (1991). (21) Similarly, President John F. Kennedy stated on September 13, 1962, that congressional authorization for a naval blockade of Cuba was unnecessary, maintaining that "I have full authority now to take such action." Pub. Papers of John F. Kennedy 674 (1962). And in a Report to the American People on October 22, 1962, President Kennedy asserted that he had ordered the blockade "under the authority entrusted to me by the Constitution as endorsed by the resolution of the Congress." Id. at 807 (emphasis added). (22) Thus, there is abundant precedent, much of it from recent Administrations, for the deployment of military force abroad, including the waging of war, on the basis of the President's sole constitutional authority.
Several recent precedents stand out as particularly relevant to the situation at hand, where the conflict is with terrorists. The first and most relevant precedent is also the most recent: the military actions that President William J. Clinton ordered on August 20, 1998, against terrorist sites in Afghanistan and Sudan. The second is the strike on Iraqi Intelligence Headquarters that President Clinton ordered on June 26, 1993. The third is President Ronald Reagan's action on April 14, 1986, ordering United States armed forces to attack selected targets at Tripoli and Benghazi, Libya.
(A) On August 20, 1998, President Clinton ordered the Armed Forces to strike at terrorist-related facilities in Afghanistan and Sudan "because of the threat they present to our national security." Remarks in Martha's Vineyard, Massachusetts, on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 Pub. Papers of William J. Clinton 1460 (1998). The President stated that the purpose of the operation was "to strike at the network of radical groups affiliated with and funded by Usama bin Ladin, perhaps the preeminent organizer and financier of international terrorism in the world today." Address to the Nation on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 Pub. Papers of William J. Clinton 1460 (1998). The strike was ordered in retaliation for the bombings of United States Embassies in Kenya and Tanzania, in which bin Laden's organization and groups affiliated with it were believed to have played a key role and which had caused the deaths of some 12 Americans and nearly 300 Kenyans and Tanzanians, and in order to deter later terrorist attacks of a similar kind against United States nationals and others. In his remarks at Martha's Vineyard, President Clinton justified the operation as follows:
I ordered this action for four reasons: first, because we have convincing evidence these groups played the key role in the Embassy bombings in Kenya and Tanzania; second, because these groups have executed terrorist attacks against Americans in the past; third, because we have compelling information that they were planning additional terrorist attacks against our citizens and others with the inevitable collateral casualties we saw so tragically in Africa; and fourth, because they are seeking to acquire chemical weapons and other dangerous weapons.
Id. In his Address to the Nation on the same day, the President made clear that the strikes were aimed, not only at bin Laden's organization, but at other terrorist groups thought to be affiliated with it, and that the strikes were intended as retribution for other incidents caused by these groups, and not merely the then-recent bombings of the two United States embassies. Referring to the past acts of the interlinked terrorist groups, he stated:
Their mission is murder and their history is bloody. In recent years, they killed American, Belgian, and Pakistani peacekeepers in Somalia. They plotted to assassinate the President of Egypt and the Pope. They planned to bomb six United States 747's over the Pacific. They bombed the Egyptian Embassy in Pakistan. They gunned down German tourists in Egypt.
Id. at 1460-61. Furthermore, in explaining why military action was necessary, the President noted that "law enforcement and diplomatic tools" to combat terrorism had proved insufficient, and that "when our very national security is challenged . . . we must take extraordinary steps to protect the safety of our citizens." Id. at 1461. Finally, the President made plain that the action of the two targeted countries in harboring terrorists justified the use of military force on their territory: "The United States does not take this action lightly. Afghanistan and Sudan have been warned for years to stop harboring and supporting these terrorist groups. But countries that persistently host terrorists have no right to be safe havens." Id.
The terrorist incidents of September 11, 2001, were surely far graver a threat to the national security of the United States than the 1998 attacks on our embassies (however appalling those events were). The President's power to respond militarily to the later attacks must be correspondingly broader. Nonetheless, President Clinton's action in 1998 illustrates some of the breadth of the President's power to act in the present circumstances.
First, President Clinton justified the targeting of particular groups on the basis of what he characterized as "convincing" evidence of their involvement in the embassy attacks. While that is not a standard of proof appropriate for a criminal trial, it is entirely appropriate for military and political decisionmaking. Second, the President targeted not merely one particular group or leader, but a network of affiliated groups. Moreover, he ordered the action, not only because of particular attacks on United States embassies, but because of a pattern of terrorist activity, aimed at both Americans and non-Americans, that had unfolded over several years. Third, the President explained that the military action was designed to deter future terrorist incidents, not only to punish past ones. Fourth, the President specifically justified military action on the territory of two foreign states because their governments had "harbor[ed]" and "support[ed]" terrorist groups for years, despite warnings from the United States.
(B) On June 26, 1993, President Clinton ordered a Tomahawk cruise missile strike on Iraqi Intelligence Service (the "IIS") headquarters in Baghdad. The IIS had planned an unsuccessful attempt to assassinate former President Bush in Kuwait in April, 1993. Two United States Navy surface ships launched a total of 23 missiles against the IIS center.
In a Letter to Congressional Leaders on the Strike on Iraqi Intelligence Headquarters, 1 Pub. Papers of William J. Clinton 940 (1993), the President referred to the failed assassination attempt and stated that "[t]he evidence of the Government of Iraq's violence and terrorism demonstrates that Iraq poses a continuing threat to United States nationals." He based his authority to order a strike against the Iraqi government's intelligence command center on "my constitutional authority with respect to the conduct of foreign relations and as Commander in Chief," as well as on the Nation's inherent right of self-defense. Id.
President Clinton's order was designed in part to deter and prevent future terrorist attacks on the United States - and most particularly future assassination attempts on former President Bush. Although the assassination attempt had been frustrated by the arrest of sixteen suspects before any harm was done, "nothing prevented Iraq from directing a second - possibly successful - attempt on Bush's life. Thus, the possibility of another assassination plot was 'hanging threateningly over [Bush's] head' and was therefore imminent. By attacking the Iraqi Intelligence Service, the United States hoped to prevent and deter future attempts to kill Bush." (23)
(C) On April 14, 1986, President Ronald Reagan, acting on his independent authority, ordered United States armed forces to engage in military action against the government of Colonel Gadhafi of Libya. (24) Thirty-two American aircraft attacked selected targets at Tripoli and Benghazi, Libya. Libyan officials reported thirty-seven people killed and an undetermined number injured. More than sixty tons of ordnance were used during the attack.
For some time Libya had supported terrorist groups and organizations and indeed had itself ordered direct terrorist attacks on the United States.
Under Gaddafi, Libya has declared its support of 'national liberation movements' and has allegedly financed and trained numerous terrorist groups and organizations, including Palestinian radicals, Lebanese leftists, Columbia's M-19 guerrillas, the Irish Republican Army, anti-Turkish Armenians, the Sandinistas in Nicaragua, Muslim rebels in the Philippines, and left-wing extremists in Europe and Japan. (25)
It had harbored a variety of terrorists, including Abu Nidal and the three surviving members of the Black September group that had killed eleven Israeli athletes at the 1972 Munich Olympic Games. (26) Libya's attacks on the United States included the murder of two United States diplomats in Khartoum (1973), the attempted assassination of Secretary of State Kissinger (1973), the burning of the United States Embassy in Tripoli (1979), the planned assassination of President Reagan, Secretary of State Haig, Secretary of Defense Weinberger, and Ambassador to Italy Robb (1981), and the hijacking of T.W.A. flight 847 (1985). (27) Libya had also been linked to terrorist events close to the time of the April, 1986, airstrike in which Americans and other had lost their lives. In January, 1986, American intelligence tied Libya to the December 27, 1985, bombings at the Rome and Vienna airports in which nineteen people, including 5 Americans, had died, and one hundred and twelve persons had been injured.
The particular event that triggered the President's military action had occurred on April 5, 1986, when a bomb exploded in the "Labelle," a Berlin discotheque frequented by U.S. military personnel. The blast killed three people (two Americans) and injured two hundred and thirty others (including seventy-nine Americans). Intelligence reports indicated that the bombing was planned and executed under the direct orders of the Government of Libya. The United States Ambassador to the United Nations stated that there was "direct, precise, and irrefutable evidence that Libya bears responsibility" for the bombing of the discotheque; that the "Labelle" incident was "only the latest in an ongoing pattern of attacks" by Libya against the United States and its allies; and that the United States had made "repeated and protracted efforts to deter Libya from its ongoing attacks," including "quiet diplomacy, public condemnation, economic sanctions, and demonstrations of military force." U.N. SCOR, 2674th mtg. at 16-17, U.N. Doc. S/PV.2674 (prov. ed. 1986).
Like the two unilateral Presidential actions discussed above, President Reagan's decision to use armed force in response to a terrorist attack on United States military personnel illustrates that the President has independent constitutional authority to use such force in the present circumstances.
IV.
Our analysis to this point has surveyed the views and practice of the executive and judicial branches. In two enactments, the War Powers Resolution and the recent Joint Resolution, Congress has also addressed the scope of the President's independent constitutional authority. We think these two statutes demonstrate Congress's acceptance of the President's unilateral war powers in an emergency situation like that created by the September 11 incidents.
Furthermore, the President can be said to be acting at the apogee of his powers if he deploys military force in the present situation, for he is operating both under his own Article II authority and with the legislative support of Congress. Under the analysis outlined by Justice Jackson in Youngstown Sheet & Tube Co., supra (and later followed and interpreted by the Court in Dames & Moore, supra), the President's power in this case would be "at its maximum," 343 U.S. at 635 (Jackson, J., concurring), because the President would be acting pursuant to an express congressional authorization. He would thus be clothed with "all [authority] that he possesses in his own right plus all that Congress can delegate," id., in addition to his own broad powers in foreign affairs under Article II of the Constitution.
The War Powers Resolution. Section 2(c) of the WPR, reads as follows:
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
50 U.S.C. § 1541(c) (emphasis added).
The executive branch consistently "has taken the position from the very beginning that section 2(c) of the WPR does not constitute a legally binding definition of Presidential authority to deploy our armed forces." Overview of the War Powers Resolution, 8 Op. O.L.C. at 274. (28) Moreover, as our Office has noted, "even the defenders of the WPR concede that this declaration [in section 2(c)] - found in the 'Purpose and Policy' section of the WPR - either is incomplete or is not meant to be binding." Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. at 176; accord Bosnia Opinion, 19 Op. O.L.C. at 335 ("The executive branch has traditionally taken the position that the President's power to deploy armed forces into situations of actual or indicated hostilities is not restricted to the three categories specifically marked out by the Resolution."); Presidential Powers Relating to the Situation in Iran, 4A Op. O.L.C. at 121 ("[T]he Resolution's policy statement is not a comprehensive or binding formulation of the President's powers as Commander-in-Chief."). Nonetheless, section 2(c)(3) correctly identifies one, but by no means the only, Presidential authority to deploy military forces into hostilities. (29) In the present circumstances, the statute signifies Congress's recognition that the President's constitutional authority alone would enable him to take military measures to combat the organizations or groups responsible for the September 11 incidents, together with any governments that may have harbored or supported them.
Further, Congress's support for the President's power suggests no limits on the Executive's judgment whether to use military force in response to the national emergency created by those incidents. Section 2(c)(3) leaves undisturbed the President's constitutional authority to determine both when a "national emergency" arising out of an "attack against the United States" exists, and what types and levels of force are necessary or appropriate to respond to that emergency. Because the statute itself supplies no definition of these terms, their interpretation must depend on longstanding constitutional practices and understandings. As we have shown in Parts I-III of this memorandum, constitutional text, structure and practice demonstrate that the President is vested with the plenary power to use military force, especially in the case of a direct attack on the United States. Section 2(c)(3) recognizes the President's broad authority and discretion in this area.
Given the President's constitutional powers to respond to national emergencies caused by attacks on the United States, and given also that section 2(c)(3) of the WPR does not attempt to define those powers, we think that that provision must be construed simply as a recognition of, and support for, the President's pre-existing constitutional authority. Moreover, as we read the WPR, action taken by the President pursuant to the constitutional authority recognized in section 2(c)(3) cannot be subject to the substantive requirements of the WPR, particularly the interrelated reporting requirements in section 4 and the "cut off" provisions of section 5, 50 U.S.C. §§ 1543-1544. (30) Insofar as the Constitution vests the power in the President to take military action in the emergency circumstances described by section 2(c)(3), we do not think it can be restricted by Congress through, e.g., a requirement that the President either obtain congressional authorization for the action within a specific time frame, or else discontinue the action. Were this not so, the President could find himself unable to respond to an emergency that outlasted a statutory cut-off, merely because Congress had failed, for whatever reason, to enact authorizing legislation within that period.
To be sure, some interpreters of the WPR take a broader view of its scope. But on any reasonable interpretation of that statute, it must reflect an explicit understanding, shared by both the Executive and Congress, that the President may take some military actions - including involvement in hostilities - in response to emergencies caused by attacks on the United States. Thus, while there might be room for disagreement about the scope and duration of the President's emergency powers, there can be no reasonable doubt as to their existence.
The Joint Resolution of September 14, 2001. Whatever view one may take of the meaning of section 2(c)(3) of the WPR, we think it clear that Congress, in enacting the "Joint Resolution [t]o authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States," Pub. L. No. 107-40, 115 Stat. 224 (2001), has confirmed that the President has broad constitutional authority to respond, by military means or otherwise, to the incidents of September 11.
First, the findings in the Joint Resolution include an express statement that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." Id. This authority is in addition to the President's authority to respond to past acts of terrorism. In including this statement, Congress has provided its explicit agreement with the executive branch's consistent position, as articulated in Parts I-III of this memorandum, that the President has the plenary power to use force even before an attack upon the United States actually occurs, against targets and using methods of his own choosing.
Second, Congress also found that there is a "threat to the national security and foreign policy of the United States posed by the[] grave acts of violence" on September 11, and that "such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy" of this country. Insofar as "the President's independent power to act depends upon the gravity of the situation confronting the nation," Youngstown Sheet & Tube Co., 343 U.S. at 662 (Clark, J., concurring in judgment), these findings would support any presidential determination that the September 11 attacks justified the use of military force in response. Further, they would buttress any Presidential determination that the nation is in a state of emergency caused by those attacks. The Constitution confides in the President the authority, independent of any statute, to determine when a "national emergency" caused by an attack on the United States exists. (31) Nonetheless, congressional concurrence is welcome in making clear that the branches agree on seriousness of the terrorist threat currently facing the Nation and on the justifiability of a military response.
Third, it should be noted here that the Joint Resolution is somewhat narrower than the President's constitutional authority. The Joint Resolution's authorization to use force is limited only to those individuals, groups, or states that planned, authorized, committed, or aided the attacks, and those nations that harbored them. It does not, therefore, reach other terrorist individuals, groups, or states, which cannot be determined to have links to the September 11 attacks. Nonetheless, the President's broad constitutional power to use military force to defend the Nation, recognized by the Joint Resolution itself, would allow the President to take whatever actions he deems appropriate to pre-empt or respond to terrorist threats from new quarters.
Conclusion
In light of the text, plan, and history of the Constitution, its interpretation by both past Administrations and the courts, the longstanding practice of the executive branch, and the express affirmation of the President's constitutional authorities by Congress, we think it beyond question that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001. Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon: the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas. (32) In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.
JOHN C. YOO
Deputy Assistant Attorney General
Office of Legal Counsel
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Notes:
1. "As Lincoln aptly said, '[is] it possible to lose the nation and yet preserve the Constitution?'" Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 662 (1952) (Clark, J., concurring in judgment).
2. See also The Federalist No. 34, at 175 (Alexander Hamilton) (Federal government is to possess "an indefinite power of providing for emergencies as they might arise"); id. No. 41, at 224 (James Madison) ("Security against foreign danger is one of the primitive objects of civil society. . . . The powers requisite for attaining it must be effectually confided to the foederal councils."). Many Supreme Court opinions echo Hamilton's argument that the Constitution presupposes the indefinite and unpredictable nature of the "the circumstances which may affect the public safety," and that the federal government's powers are correspondingly broad. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 662 (1981) (noting that the President "exercis[es] the executive authority in a world that presents each day some new challenge with which he must deal"); Hamilton v. Regents, 293 U.S. 245, 264 (1934) (federal government's war powers are "well-nigh limitless" in extent); Stewart v. Kahn, 78 U.S. (11Wall.) 493, 506 (1870) ("The measures to be taken in carrying on war . . . are not defined [in the Constitution]. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution."); Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1870) ("The Constitution confers upon Congress expressly power to declare war, grant letters of marque and reprisal, and make rules respecting captures on land and water. Upon the exercise of these powers no restrictions are imposed. Of course the power to declare war involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted.").
3. See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (President has authority to deploy United States armed forces "abroad or to any particular region"); Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850) ("As commander-in-chief, [the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual"); Loving v. United States, 517 U.S. 748, 776 (1996) (Scalia, J., concurring in part and concurring in judgment) (The "inherent powers" of the Commander in Chief "are clearly extensive."); Maul v. United States, 274 U.S. 501, 515-16 (1927) (Brandeis & Holmes, JJ., concurring) (President "may direct any revenue cutter to cruise in any waters in order to perform any duty of the service"); Massachusetts v. Laird, 451 F.2d 26, 32 (1st Cir. 1971) (the President has "power as Commander-in-Chief to station forces abroad"); Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6 (1992).
4. See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 196-241 (1996).
5. See id. ("He must determine what degree of force the crisis demands."); see also Eisentrager, 339 U.S. at 789 ("Certainly it is not the function of the Judiciary to entertain private litigation - even by a citizen - which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region."); Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948) ("The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret."); Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1561 (D.C. Cir. 1984) (Scalia, J., dissenting), vacated by 471 U.S. 1113 (1985); Ex parte Vallandigham, 28 F.Cas. 874, 922 (C.C.S.D. Ohio 1863) (No. 16,816) (in acting "under this power where there is no express legislative declaration, the president is guided solely by his own judgment and discretion"); Hefleblower v. United States, 21 Ct. Cl. 228, 238 (Ct. Cl. 1886) ("The responsibility of declaring what portions of the country were in insurrection and of declaring when the insurrection came to an end was accorded to the President; when he declared a portion of the country to be in insurrection the judiciary cannot try the issue and find the territory national; conversely, when the President declared the insurrection at an end in any portion of the country, the judiciary cannot try the issue and find the territory hostile."); cf. United States v. Chemical Found., Inc., 272 U.S. 1, 12 (1926) ("It was peculiarly within the province of the Commander-in-Chief to know the facts and to determine what disposition should be made of enemy properties in order effectively to carry on the war.")
6. See, e.g., Louis Fisher, Presidential War Power 185-206 (1995); John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath 3-5 (1993); Michael J. Glennon, Constitutional Diplomacy 80-84 (1990); Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs 109 (1990); Harold Hongju Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair 158-61 (1990); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law (2d ed. 1989).
Other scholars, however, have argued that the President has the constitutional authority to initiate military hostilities without prior congressional authorization. See, e.g., Edward S. Corwin, The President: Office and Powers 1787-1984 (5th ed. 1984); Philip Bobbitt, War Powers: An Essay on John Hart Ely's "War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath," 92 Mich. L. Rev. 1364 (1994); Robert H. Bork, Erosion of the President's Power in Foreign Affairs, 68 Wash. U. L. Q. 693 (1990); Henry P. Monaghan, Presidential War-Making, 50 B.U.L. Rev. 19 (1970); W. Michael Reisman, Some Lessons from Iraq: International Law and Democratic Politics, 16 Yale J. Int'l L. 203 (1991); Eugene V. Rostow, "Once More unto the Breach:" The War Powers Resolution Revisited, 21 Val. U.L. Rev. 1 (1986); John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U. Pa. L. Rev. 1673 (2000); Yoo, supra n.4.
7. A subsequent version made clear "that the governor and commander-in-chief shall have no power to commence war, or conclude peace, or enter into any final treaty" without legislative approval. S.C. Const. art. XXXIII (1778), reprinted in 6 The Federal and State Constitutions 3255 (Francis Newton Thorpe ed., 1909).
8. Of the eight major wars fought by Great Britain prior to the ratification of the Constitution, war was declared only once before the start of hostilities. See Yoo, supra note 4, at 214-15. See also W. Taylor Reveley, III, War Powers of the President and Congress: Who Holds the Arrows and Olive Branch? 55 (1981) ("[U]ndeclared war was the norm in eighteenth-century European practice, a reality brought home to Americans when Britain's Seven Years' War with France began on this continent." ); William Michael Treanor, Fame, The Founding, and The Power to Declare War, 82 Cornell L. Rev. 695, 709 (1997).
9. James Iredell (later an Associate Justice of the Supreme Court) argued in the North Carolina Ratifying Convention that "[f]rom the nature of the thing, the command of armies ought to be delegated to one person only. The secrecy, despatch, and decision, which are necessary in military operations, can only be expected from one person." Debate in the North Carolina Ratifying Convention, in 4 Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, at 107 (2d ed. 1987). See also 3 Joseph Story, Commentaries on the Constitution of the United States § 1485 (1833) (in military matters, "[u]nity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when single magistrate is entrusted exclusively with the power").
10. Thus, Article II's enumeration of the Treaty and Appointments Clauses only dilutes the unitary nature of the executive branch in regard to the exercise of those powers, rather than transforming them into quasi-legislative functions. See Constitutionality of Proposed Conditions to Senate Consent to the Interim Convention on Conservation of North Pacific Fur Seals, 10 Op. O.L.C. 12, 17 (1986) ("Nothing in the text of the Constitution or the deliberations of the Framers suggests that the Senate's advice and consent role in the treaty-making process was intended to alter the fundamental constitutional balance between legislative authority and executive authority.").
11. At the time Attorney General Jackson delivered his opinion, the United States was a neutral, and thus his conclusions about the President's powers did not rest on any special considerations that might apply in time of war. Although he stated that he was "inclined to the opinion" that a statute (the Lend-Lease Act) authorized the decision under review, Jackson expressly based his conclusion on the President's constitutional authority. Id. at 61.
12. Justice Paterson went on to remark that in those circumstances "it would I apprehend, be not only lawful for the president to resist such invasion, but also to carry hostilities into the enemy's own country." Id. at 1230.
13. The court further observed that "in a grave emergency [the President] may, without Congressional approval, take the initiative to wage war. . . . In such unusual situations necessity confers the requisite authority upon the President. Any other construction of the Constitution would make it self-destructive." Id. at 613-14. Accord Massachusetts v. Laird, 451 F.2d at 31 ("[t]he executive may without Congressional participation repel attack").
14. As the Supreme Court has noted, "the decisions of the Court in th[e] area [of foreign affairs] have been rare, episodic, and afford little precedential value for subsequent cases." Dames & Moore, 453 U.S. at 661. In particular, the difficulty the courts experience in addressing "the broad range of vitally important day-to-day questions regularly decided by Congress or the Executive" with respect to foreign affairs and national security makes the judiciary "acutely aware of the necessity to rest [judicial] decision[s] on the narrowest possible ground capable of deciding the case." Id. at 660-61. Historical practice and the ongoing tradition of executive branch constitutional interpretation therefore play an especially important role in this area.
15. See Campbell v. Clinton, 203 F.3d at 40 (Tatel, J., concurring) (quoting testimony of Secretary of Defense Cohen that "'[w]e're certainly engaged in hostilities [in Yugoslavia], we're engaged in combat'"); Exec. Order No. 13119, 64 Fed. Reg. 18,797 (Apr. 16, 1999) (designating March 24, 1999, as "the date of the commencement of combatant activities" in Yugoslavia); John C. Yoo, US Wars, US War Powers, 1 Chi. J. Int'l L. 355 (2000).
16. News Briefing, Office of the Assistant Secretary of Defense (Public Affairs), June 10, 1999, available at http://www.defenselink.mil/news/Jun1999 ... 10asd.html (remarks of Sec. Cohen).
17. Id. (remarks of Gen. Shelton).
18. General Michael E. Ryan, It may take time, but it's inevitable, Air Force News (released June 8, 1999).
19. See Nick Cook, War of Extremes, in Jane's Defence Weekly (July 7, 1999), available at http://www.janes.com/defense/news/kosov ... 1__n.shtml.
20. See Yoo, supra n.15, at 359.
21. Further, in a press conference on January 9, 1991, President Bush was asked if he believed that he needed congressional authorization in order to begin offensive operations against Iraq. He answered, "I don't think I need it. I think Secretary Cheney expressed it very well the other day. There are different opinions on either side of this question, but Saddam Hussein should be under no question on this: I feel that I have the authority to fully implement the United Nations resolutions." The President's News Conference on the Persian Gulf Crisis, 1 Pub. Papers of George Bush 17, 20 (1991).
22. An unsigned, unaddressed opinion in this Office's files, entitled Blockade of Cuba (Oct. 19, 1962), states that "the President, in the exercise of his constitutional power as Commander-in-Chief, can order a blockade without prior Congressional sanction and without a declaration of war by Congress." Id. at 9. Thus, the writers of the memorandum (presumably, either this Office or the State Department Legal Adviser's Office) determined that no Congressional authorization either existed or was necessary for the blockade ordered by President Kennedy.
23. Robert F. Teplitz, Taking Assassination Attempts Seriously: Did the United States Violate International Law in Forcefully Responding to the Iraqi Plot to Kill George Bush?, 28 Cornell Int'l L. J. 569, 609 (1995) (citation omitted).
24. See generally Wallace F. Warriner, U.S.M.C., The Unilateral Use of Coercion Under International Law: A Legal Analysis of the United States Raid on Libya on April 14, 1986, 37 Naval L. Rev. 49 (1988); Teplitz, supra n.23, at 583-86.
25. Teplitz, supra n.23, at 617 n.112.
26. See id.
27. See id. at n.113.
28. Thus, the State Department took the view, in a letter of November 30, 1974, that section 2(c) was a "declaratory statement of policy." Further, in 1975, the Legal Adviser to the State Department listed six (non-exclusive) situations, not enumerated in section 2(c), in which the President had independent constitutional authority to deploy troops without either a declaration of war or specific statutory authorization. See id. at 274-75.
29. We note that section 2(c) cannot itself qualify as a statutory authorization to act in national emergencies. It is rather a congressional acknowledgment of the President's nonstatutory, Article II-based powers. Section 8(d)(2) of the WPR, 50 U.S.C. § 1547, specifically provides that nothing in the WPR "shall be construed as granting any authority to the President . . . which authority he would not have had in the absence of this [joint resolution]."
30. True, the reporting requirement in section 4(a)(1) purports to apply to any case in which U.S. armed forces are introduced into hostilities "[i]n the absence of a declaration of war." 50 U.S.C. § 1543(a)(1). Further, the "cut off" provisions of section 5 are triggered by the report required by section 4(a)(1). Thus, the language of the WPR indicates an intent to reach action taken by the President pursuant to the authority recognized in section 2(c)(3), if no declaration of war has been issued. We think, however, that it would be beyond Congress's power to regulate the President's emergency authority in the manner prescribed by sections 4(a)(1) and 5.
31. See Prize Cases, 67 U.S. at 670 (whether a state of belligerency justifying a blockade exists is to be decided by the President); see also Sterling v. Constantin, 287 U.S. 378, 399 (1932) ("By virtue of his duty to 'cause the laws to be faithfully executed', the Executive is appropriately vested with the discretion to determine whether an exigency requiring military aid for that purpose has arisen."); Moyer v. Peabody, 212 U.S. 78, 83 (1909) ("[T]he governor's declaration that a state of insurrection existed is conclusive of that fact."); Campbell, 203 F.3d at 26-27 (Silberman, J., concurring) (The Court in the Prize Cases "made clear that it would not dispute the President on measures necessary to repel foreign aggression"); cf. Martin v. Mott, 25 U.S. (12 Wheat.) 19, 30 (1827) (President had unreviewable discretion to determine when "emergency" existed under statute enabling him to call up militia).
32. We of course understand that terrorist organizations and their state sponsors operate by secrecy and concealment, and that it is correspondingly difficult to establish, by the standards of criminal law or even lower legal standards, that particular individuals or groups have been or may be implicated in attacks on the United States. Moreover, even when evidence sufficient to establish involvement is available to the President, it may be impossible for him to disclose that evidence without compromising classified methods and sources, and so damaging the security of the United States. See, e.g., Chicago & Southern Air Lines, Inc, 333 U.S. at 111 ("The President . . . has available intelligence services whose reports are not and ought not to be published to the world."); see also Ruth Wedgwood, Responding to Terrorism: The Strikes Against Bin Laden, 24 Yale J. Int'l L. 559, 568-74 (1999) (analyzing difficulties of establishing and publicizing evidence of causation of terrorist incidents). But we do not think that the difficulty or impossibility of establishing proof to a criminal law standard (or of making evidence public) bars the President from taking such military measures as, in his best judgment, he thinks necessary or appropriate to defend the United States from terrorist attacks. In the exercise of his plenary power to use military force, the President's decisions are for him alone and are unreviewable.
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MEMO __
U.S. Department of Justice
Office of Legal Counsel
Office of the Deputy Assistant Attorney General
Washington, DC. 20530
September 25, 2001
MEMORANDUM FOR DAVID S. KRIS ASSOCIATE DEPUTY ATTORNEY GENERAL
From: John C. Yoo, Deputy Assistant Attorney General
Re: Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the "Purpose" Standard for Searches
You have asked for our opinion on the constitutionality of amending the Foreign Intelligence Surveillance Act, 50 U.S.C.§§ 1801-1811 (1994 & West Supp. 2000) ("FISA"), so that a search may be approved when the collection of foreign intelligence is "a purpose" of the search. In its current form, F1SA requires that "the purpose" of the search be for the collection of foreign intelligence. 50 U.S.C. § 1804(a)(7)(B). We believe that this amendment would not violate the Fourth Amendment.
It should be made clear at the outset that the proposed FISA amendment cannot cause a facial violation of the Fourth Amendment. Because "a" purpose would include the current warrant applications in which foreign intelligence is "the" purpose of the search, a significant class of valid searches would continue to fall within the new statutory language. It may be the case that some warrant applications - for example, those instances where criminal investigation constitutes an overwhelming purpose of the surveillance - will be rejected by the FISA court. In those situations, the FISA amendment would not be unconstitutional, so much as the Court would be construing the statute, according to the canon that statutes are to be read to avoid constitutional problems, so as not to require the issuance of a warrant that would go beyond the Fourth Amendment. In other words, the proposed amendment cannot violate the Fourth Amendment because it would simply allow the Department to apply for FISA warrants up to the limit permitted by the Constitution, as determined by the FISA court. Amending FISA merely gives the Department the full flexibility to conduct foreign intelligence surveillance that is permitted by the Constitution itself.
We caution, however, that much will depend on the manner in which the Department chooses to operate within the new standard. Some warrant applications might be rejected by the courts if prosecutors become too involved in the planning and execution of FISA searches. Nonetheless, as we observed in 1995, "the courts have been exceedingly deferential to the government and have almost invariably declined to suppress the evidence, whether they applied the 'primary purpose' test or left open the possibility of a less demanding standard." Memorandum for Michael Vatis, Deputy Director, Executive Office for National Security, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Standards for Searches Under Foreign Intelligence Surveillance Act at 1 (Feb. 14, 1995). We believe that the Department would continue to win such deference from the courts if it continues to ensure that criminal investigation not become a primary purpose of FISA surveillance.
I.
The Fourth Amendment declares that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const, amend. IV (emphasis added). The Amendment also declares that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Id. .
Thus, the touchstone for review is whether a search is "reasonable." See, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995) ("[a]s the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is 'reasonableness'"). When law enforcement undertakes a search to discover evidence of criminal wrongdoing, the Supreme Court has said that reasonableness generally requires a judicial warrant. See id. at 653. But the Court has made clear that a warrant is not required for all government searches. A warrantless search can be constitutional "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." Id.
As a result, the Court properly has found a variety of warrantless government searches to be consistent with the Fourth Amendment. See, e.g., Pennsylvania v. Labron, 518 U.S. 938 (1996) (per curiam) (certain automobile searches); Acton (drug testing of high school athletes); Michigan v. Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (drunk driver checkpoints); Skinner v. Railway Labor Executives' Ass'n., 489 U.S. 602 (1989) (drug testing of railroad personnel); Treasury Employees v. Von Raab, 489 U.S. 656 (1989) (random drug testing of federal customs officers); United States v. Place, 462 U.S. 696 (1983) (temporary seizure of baggage); Michigan v. Summers, 452 U.S. 692 (1981) (detention to prevent flight and to protect law enforcement officers); Terry v. Ohio, 392 U.S. 1 (1968) (temporary stop and limited search for weapons).
In these circumstances, the Court has examined several factors to determine whether a warrantless search is reasonable. As the Court stated just last Term: "When faced with special law-enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable." Illinois v. McArthur, 121 S. Ct. 946,949 (2001). In creating these exceptions to its warrant requirement, the Court has found that, under the totality of the circumstances, the "importance of the governmental interests" has outweighed the "nature and quality of the intrusion on the individual's Fourth Amendment interests." See Tennessee v. Garner, 471 U.S. 1, 8 (1985).
Of particular relevance here, the Court has found warrantless searches reasonable when there are "exigent circumstances," such as a potential threat to the safety of law enforcement officers or third parties. The Court has also recognized that a government official may not need to show the same kind of proof to a magistrate to obtain a warrant for a search unrelated to the investigation of a crime "as one must who would search for the fruits or instrumentalities of crime." Camara v. Municipal Court of San Francisco, 387 U.S. 523,538 (1967). For example, "[w]here considerations of health and safety are involved, the facts that would justify an inference of 'probable cause' to make an inspection are clearly different from those that would justify such an inference where a criminal investigation has been undertaken." Id. See also Indianapolis v. Edmond, 531 U.S. 32,44 (2000) (in context of seizure and exigent circumstances, Fourth Amendment would permit appropriately tailored roadblock to thwart an imminent terrorist attack or catch a dangerous criminal who is likely to flee).
II.
This analysis of Fourth Amendment doctrine demonstrates that the government could conduct searches to obtain foreign intelligence without satisfying all of the requirements applicable in the normal law enforcement context. It is important to understand the current shape of Fourth Amendment law, and how it would apply to the circumstances at hand, in order to evaluate the constitutionality of the proposed amendment to FISA. As we have noted earlier, the Fourth Amendment's reasonableness test for searches generally calls for a balancing of the government's interest against the individual's Fourth Amendment interests. Here, the nature of the government interest is great. In the counter-intelligence field, the government is engaging in electronic surveillance in order to prevent foreign powers or their agents from obtaining information or conducting operations that would directly harm the security of the United States.
To be sure, the Supreme Court has subjected counter-intelligence searches of purely domestic terrorist groups to a warrant requirement. When it first applied the Fourth Amendment to electronic surveillance, the Supreme Court specifically refused to extend its analysis to include domestic searches that were conducted for national security purposes. Katx v. United States, 389 U.S. 347, 358 n.23 (1967); see also Mitchell v. Forsyth, 472 U.S. 511,531 (1985). Later, however, in United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297,299 (1972) ("Keith,"), the Court held that the warrant requirement should apply to cases of terrorism by purely domestic groups. In doing so, the Justices framed the question by explaining that, "[i]ts resolution is a matter of national concern, requiring sensitivity both to the Government's right to protect itself from unlawful subversion and attack and to the citizen's right to be secure in his privacy against unreasonable Government intrusion." While acknowledging that "unless Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered," id. at 312, the Court cautioned that "[t]he danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect 'domestic security.' Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent." Id. at 314. As a result, the Court held that the absence of neutral and disinterested magistrates governing the reasonableness of the search impermissibly left "those charged with [the] investigation and prosecutorial duty [as] the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks." Id at 317.
The court explicitly noted, however, that it was not considering the scope of the President's surveillance power with respect to the activities of foreign powers within or without the country. Id. at 308. And after the Keith decision, lower courts have found that when the government conducts a search, for national security reasons, of a foreign power or its agents, it need not meet the same requirements that would normally apply in the context of criminal law enforcement, In United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), for example, the Fourth Circuit observed that "the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following Keith, 'unduly frustrate,' the President in carrying out his foreign affairs responsibilities." Id. at 913. The Court based this determination on a number of factors, including:
The Court also recognized, however, that "because individual privacy interests are severely compromised any time the government conducts surveillance without prior judicial approval, this foreign intelligence exception to the Fourth Amendment warrant requirement must be carefully limited to those situations in which the interests of the executive are paramount." Id. at 915. See also United States v. Brown, 484 F. 2d 418 (5 th Cir. 1973), cert. denied, 415 U.S. 960 (1974); United States v. Buck, 548 F.2d 873 (9th Cir.), cert, denied, 434 U.S. 890 (1977); United States v. Clay, 430 F.2d 165 (5th Cir. 1970), rev'd on other grounds, 403 U.S. 698 (1971).
Therefore, the Fourth Circuit held that the government was relieved of the warrant requirement when (1) the object of the search or surveillance is a foreign power, its agent or collaborators since such cases are "most likely to call into play difficult and subtle judgments about foreign and military affairs," 629 F.2d at 915; and (2) "when the surveillance is conducted 'primarily' for foreign intelligence reasons .... because once surveillance becomes primarily a criminal investigation, the courts are entirely competent to make the usual probable cause determination, and because, importantly, individual privacy interests come to the fore and government foreign policy concerns recede when the government is primarily attempting to form the basis for a criminal prosecution." Id.
The factors favoring warrantless searches for national security reasons may be even more compelling under current circumstances than at the time of these lower court decisions. After the attacks on September 11, 2001, the government interest in conducting searches related to fighting terrorism is perhaps of the highest order - the need to defend the nation from direct attack. As the Supreme Court has said, "It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981). The compelling nature of the government's interest here may be understood in light of the Founders' express intention to create a federal government "cloathed with all the powers requisite to the complete execution of its trust." The Federalist No. 23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). Foremost among the objectives committed to that trust by the Constitution is the security of the nation. As Hamilton explained in arguing for the Constitution's adoption, because "the circumstances which may affect the public safety" are not "reducible within certain determinate limits,"
Id. at 147-48. [1] Within the limits that the Constitution itself imposes, the scope and distribution of the powers to protect national security must be construed to authorize the most efficacious defense of the nation and its interests in accordance "with the realistic purposes of the entire instrument." Lichter v. United States, 334 U.S. 742, 782 (1948). Nor is the authority to protect national security limited to that necessary "to victories in the field." Application of Yamashita, 327U.S. 1,12(1946). The authority over national security "carries with it the inherent power to guard against the immediate renewal of the conflict." Id.
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 grave and unforeseen emergencies. Intelligence gathering is a necessary function that enables the President to carry out that authority. The Constitution, for example, vests in the President the power to deploy military force in the defense of the United States by the Vesting Clause, U.S. Const, art. II, § 1, cl. 1, and by the Commander in Chief Clause, id., § 2, cl. 1. [2] Intelligence operations, such as electronic surveillance, very well may be necessary and proper for the effective deployment and execution of military force against terrorists. Further, the Constitution makes explicit the President's obligation to safeguard the nation's security by whatever lawful means are available by imposing on him the duty to "take Care that the Laws be faithfully executed." Id., § 3. The implications of constitutional text and structure are confirmed by the practical consideration that national security decisions often require the unity in purpose and energy in action that characterize the Presidency rather than Congress. [3]
Judicial decisions since the beginning of the Republic confirm the President's constitutional power and duty to repel military action against the United States and to take measures to prevent the recurrence of an attack. As Justice Joseph Story said long ago, "[i]t may be fit and proper for the government, in the exercise of the high discretion confided to the executive, for great public purposes, to act on a sudden emergency, or to prevent an irreparable mischief, by summary measures, which are now 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. See, e.g.. The Prize Cases, 67 U.S. (2 Black) 635,668 (1862) ("If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force... without waiting for any special legislative authority."); Kahanamoku, 327 U.S. at 336 (Stone, C.J., concurring) ("Executive has broad discretion in determining when the public emergency is such as to give rise to the necessity" for emergency measures); United States v. Smith, 27 F. Cas. 1192,1230 (C.C.D.N.Y. 1806) (No. 16,342) (Paterson, Circuit Justice) (regardless of statutory authorization, it is "the duty ... of the executive magistrate ... to repel an invading foe"); see also 3 Story, Commentaries § 1485 ("[t]he command and application of the public force ... to maintain peace, and to resist foreign invasion" are executive powers).
This Office has maintained, across different administrations and different political parties, that the President's constitutional responsibility to defend the nation may justify reasonable, but warrantless, counter-intelligence searches. In 1995, we recognized that the executive branch needed flexibility in conducting foreign intelligence surveillance. Memorandum for Michael Vatis, Deputy Director, Executive Office for National Security, From Walter Dellinger, Assistant Attorney General, Re: Standards for Searches Under Foreign Intelligence Surveillance Act (Feb. 14,1995). In 1980, this Office also said that "the lower courts - as well as this Department - have frequently concluded that authority does exist in the President to authorize such searches regardless of whether the courts also have the power to issue warrants for those searches." Memorandum for the Attorney General, from John M. Harmon, Assistant Attorney General, Re: Inherent Authority at 1 (Oct. 10, 1980). Based on similar reasoning, this Office recently concluded that the President could receive materials, for national defense purposes, acquired through Title III surveillance methods or grand juries. See Memorandum for Frances Fragos Townsend, Counsel, Office of Intelligence Policy and Review, from Randolph D. Moss, Assistant Attorney General, Re: Title III Electronic Surveillance Material and the Intelligence Community (Oct. 17, 2000); Memorandum for Gerald A. Schroeder, Acting Counsel, Office of Intelligence Policy and Review, from Richard L. Shiffrin, Deputy Assistant Attorney General, Re: Grand Jury Material and the Intelligence Community (Aug. 14, 1997); Disclosure of Grand Jury Matters to the President and Other Officials, 17 Op. O.L.C 59 (1993). As the Commander-in-Chief, the President must be able to use whatever means necessary to prevent attacks upon the United States; this power, by implication, includes the authority to collect information necessary for its effective exercise.
This examination of the government's interest demonstrates that the current situation, in which Congress has recognized the President authority to use force in response to a direct attack on the American homeland, has changed the calculus of a reasonable search. The government's interest has changed from merely conducting foreign intelligence surveillance to counter intelligence operations by other nations, to one of preventing terrorist attacks against American citizens and property within the continental United States itself. The courts have observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others. See, e.g., Romero v. Board of County Commissioners, 60 F.3d 702 (10 th Cir. 1995), cert, denied, 516 U.S. 1073 (1996); O'Neal v. DeKalb County, 850 F.2d 653 (11th Cir. 1988). Here, for Fourth Amendment purposes, the right to self-defense is not that of an individual, but that of the nation and of its citizens. Cf. In re Neagle, 135 U.S. 1 (1890); The Prize Cases, 67U.S. (2 Black) 635 (1862). If the government's heightened interest in self-defense justifies the use of deadly force, then it certainly would also justify warrantless searches.
III.
It is against this background that the change to FISA should be understood. Both the executive branch and the courts have recognized that national security searches against foreign powers and their agents need not comport with the same Fourth Amendment requirements that apply to domestic criminal investigations. FISA embodies idea that, in this context, the Fourth Amendment applies differently than in the criminal context. Nonetheless, FISA itself is not required by the Constitution, nor is it necessarily the case that its current standards match exactly to Fourth Amendment standards. Rather, like the warrant process in the normal criminal context, FISA represents a statutory procedure that, if used, will create a presumption that the surveillance is reasonable under the Fourth Amendment. Thus, it is wholly appropriate to amend FISA to bring its provisions into line with changes in the Fourth Amendment's reasonableness calculus. As outlined above, that calculus has shifted in light of the September 11 attacks and the increased counter-terrorism threat.
This is not to say that FISA searches would be constitutional no matter how little foreign intelligence purpose is present in the warrant application. We do not disagree with the analysis of the courts that it is the national security element in the search that justifies its exemption from the standard law enforcement warrant process. After the enactment of FISA, for example, courts have emphasized the distinction between searches done to collect foreign intelligence and those undertaken for pursuing criminal prosecutions. Although this may be due, in part, to a statutory construction of the FISA provisions, the courts' language may be seen as having broader application. As the Second Circuit has emphasized, although courts, even prior to the enactment of FISA, concluded that the collection of foreign intelligence information constituted an exception to the warrant requirement, "the governmental interests presented in national security investigations differ substantially from those presented in traditional criminal prosecutions." United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984). The Duggan Court held that FISA did not violate the Fourth Amendment because the requirements of FISA "provide an appropriate balance between the individual's interest in privacy and the government's need to obtain foreign intelligence information." Id. at 74. However, the court's holding was made in the context of acknowledging the reasonableness of "the adoption of prerequisites to surveillance that are less stringent than those precedent to the issuance of a warrant for a criminal investigation." Id. at 73. As such, the court's finding that the purpose of the surveillance was to secure foreign intelligence information, and not directed towards criminal prosecution, may very well be of constitutional magnitude.
Similarly, the Ninth Circuit found that the lowered probable cause showing required by FISA is reasonable because, although the application need not state that the surveillance is likely to uncover evidence of a crime, "the purpose of the surveillance is not to ferret out criminal activity but rather to gather intelligence, [and therefore] such a requirement would be illogical." United States v. Cavanagh, 807 F.2d 787, 790-91 (9th Cir. 1987) (Kennedy, J.). [4] And consistent with both the language of the Second and Ninth Circuits, the First Circuit, in upholding the constitutionality of FISA, explained that "[although evidence obtained under FISA subsequently may be used in criminal prosecutions, the investigation of criminal activity cannot be the primary purpose of the surveillance [and therefore] [t]he act is not to be used as an end-run around the Fourth Amendment's prohibition of warrantless searches." United States v. Johnson, 952 F.2d 565, 572 (l th Cir. 1991) (citations omitted), cert, denied, 506 U.S. 816 (1992).
On the other hand, it is also clear that while FISA states that "the" purpose of a search is for foreign surveillance, that need not be the only purpose. Rather, law enforcement considerations can be taken into account, so long as the surveillance also has a legitimate foreign intelligence purpose. FISA itself makes provision for the use in criminal trials of evidence obtained as a result of FISA searches, such as rules for the handling of evidence obtained through FISA searches, 50 U.S.C. §§ 1801(h) & 1806, and procedures for deciding suppression motions, id. § 1806(e). In approving FISA, the Senate Select Committee on Intelligence observed: "U.S. persons may be authorized targets, and the surveillance is part of an investigative process often designed to protect against the commission of serious crimes such as espionage, sabotage, assassination, kidnapping, and terrorist acts committed by or on behalf of foreign powers. Intelligence and criminal law enforcement tend to merge in this area." S. Rep. No. 95-701, at 10-11 (1978). The Committee also recognized that "foreign counterintelligence surveillance frequently seeks information needed to detect or anticipate the commission of crimes," and that "surveillances conducted under [FISA] need not stop once conclusive evidence of a crime is obtained, but instead may be extended longer where protective measures other than arrest and prosecution are more appropriate." Id. at 11.
The courts agree that the gathering of counter-intelligence need not be the only purpose of a constitutional FISA search. An "otherwise valid FISA surveillance is not tainted simply because the government can anticipate that the fruits of such surveillance may later be used, as allowed by § 1806(b), as evidence in a criminal trial." Duggan, 743 F.2d at 78. This is due to the recognition that "in many cases the concerns of the government with respect to foreign intelligence will overlap those with respect to law enforcement." Id. In order to police the line between legitimate foreign intelligence searches and law enforcement, most courts have adopted the test that the "primary purpose" of a FISA search is to gather foreign intelligence. See id.; United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991); United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987), cert, denied, 486 U.S. 1010 (1988); United States v. Badia, 827 F.2d 1458,1464 (11th Cir. 1987), cert, denied, 485 U.S. 937 (1988). Not all courts, however, have felt compelled to adopt the primary purpose test. The Ninth Circuit has explicitly reserved the question whether the ''primary purpose" is too strict and the appropriate test is simply whether there was a legitimate foreign intelligence purpose. United States v. Sarkissian, 841 F.2d 959,964 (9th Cir. 1988). No other Circuit has explicitly held that such a formulation would be unconstitutional.
In light of this case law and FISA's statutory structure, we do not believe that an amendment of FISA from "the" purpose to "a" purpose would be unconstitutional. To be sure, it is difficult to predict with exact certainty where the courts would draw the line in the context of balancing individual privacy interests and government foreign policy concerns. So long, however, as the government has a legitimate objective in obtaining foreign intelligence information, it should not matter whether it also has a collateral interest in obtaining information for a criminal prosecution. As courts have observed, the criminal law interests of the government do not taint a FISA search when its foreign intelligence objective is primary. This implies that a FISA search should not be invalid when the interest in criminal prosecution is significant, but there is still a legitimate foreign intelligence purpose for the search. This concept flows from the courts' recognition that the concerns of government with respect to foreign policy will often overlap with those of law enforcement.
Further, there are other reasons that justify the constitutionality of the proposed change to FISA. First, as an initial matter, the alteration in the statute could not be facially unconstitutional. As the Court has held, in order to succeed a facial challenge to a statute must show that the law is invalid "in every circumstance." Babbitt v. Sweet Home Chapter, 515 U.S. 687,699 (1995). As the Court made clear in United States v. Salerno, 481 U.S. 739 (1987), "[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." Id. at 745. Such a challenge would fail here. Even if FISA were amended to require that "a" purpose for the search be the collection of foreign intelligence, that class of searches would continue to include both searches in which foreign intelligence is the only purpose and searches in which it is the primary purpose - both permissible under current case law.
Second, amending FISA would merely have the effect of changing the statute to track the Constitution. Courts have recognized that the executive branch has the authority to conduct warrantless searches for foreign intelligence purposes, so long as they are reasonable under the Fourth Amendment. Although the few courts that have addressed the issue have followed a primary purpose test, it is not clear that the Constitution, FISA, or Supreme Court case law requires that test. It may very well be the case that the primary purpose test is more demanding than that called for by the Fourth Amendment's reasonableness requirement. Adopting the proposed FISA amendment will continue to make clear that the government must have a legitimate foreign surveillance purpose in order to conduct a FISA search. It would also recognize the possibility that because the executive can more fully assess the requirements of national security than can the courts, and because the President has a constitutional duty to protect the national security, the courts should not deny him the authority to conduct intelligence searches even when the national security purpose is secondary to criminal prosecution. At the same time, however, it still remains the province of the FISA court to determine whether such searches are constitutional by following a primary purpose test, or a less severe standard, such as requiring only a "significant" or "substantial" purpose. By altering the FISA standard to "a" purpose, Congress would allow the government to file applications that would be consistent with whatever Fourth Amendment standard the FISA court chooses.
To be sure, the government might seek a FISA warrant where "a" foreign intelligence purpose is present, but "the primary" purpose is to obtain evidence in furtherance of a criminal investigation. The fact that the search is aimed at furthering a criminal investigation, which only incidentally promotes the national security and our foreign affairs interests, probably would not exempt the search from the usual probable cause requirements of the Fourth Amendment. Once the objective in acquiring the information is aimed primarily at effecting a criminal prosecution, as opposed to gathering intelligence information for counterintelligence purposes, the case may be more like Keith than it is like Truong Dinh Hung. Rather than being a matter of judicial second-guessing of the executive branch's determination that a foreign intelligence search is necessary, the objective would center instead on the desire to obtain information for a criminal prosecution.
In these circumstances, however, the FISA amendment would not permit unconstitutional searches. A court could still conclude that there is no real distinction between the law enforcement objective with incidental national security considerations, despite the fact that it arises in the foreign intelligence context, and the objective at issue in Keith. Once the primary purpose of the search is to further a criminal prosecution of one or more individuals, then absent exigent circumstances it would seem that the core principles of the Fourth Amendment are triggered, requiring the reasonableness determination of a neutral magistrate based on the full probable cause standard of the Fourth Amendment. No longer would it be a question of conducting the "delicate and complex decisions that lie behind foreign intelligence surveillance," Truong Dinh Hung, 629 F.2d at 913, nor would it primarily be a question of the "importance of particular information to the security of the United States" or "diplomacy and military affairs," id. at 913-14. A court could decide that the warrant instead asked whether there are sufficient grounds to search premises or to conduct surveillance of private individuals for purposes of pursuing criminal prosecutions. In such a context, "individual privacy interests come to the fore and government foreign policy concerns recede." Id. at 915.
A FISA court still remains an Article III court. As such, it still has an obligation to reject FISA applications that do not truly qualify for the relaxed constitutional standards applicable to national security searches. Rejecting an individual application, however, would not amount to a declaration that the "a" purpose standard was unconstitutional. Rather, the court would only be interpreting the new standard so as not to violate the Constitution, in accordance with the canon of statutory construction that courts should read statutes to avoid constitutional difficulties. See Public Citizen v. Department of Justice, 491 U.S. 440,466 (1989); Edward J. DeBartolo Corp, v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575 (1988). Amending FISA to require only "a" purpose merely removes any difference between the statutory standard for reviewing FISA applications and the constitutional standard for national security searches.
Third, it is not unconstitutional to establish a standard for FISA applications that may be less demanding than the current standard, because it seems clear that the balance of Fourth Amendment considerations has shifted in the wake of the September 11 attacks. As discussed earlier in this memo, the reasonableness of a search under the Fourth Amendment depends on the balance between the government's interests and the privacy rights of the individuals involved. As a result of the direct terrorist attacks upon the continental United States, the government's interest has reached perhaps its most compelling level, that of defending the nation from assault. This shift upward in governmental interest has the effect of expanding the class of reasonable searches under the Fourth Amendment. Thus, some surveillance that might not have satisfied the national security exception for warrantless searches before September 11, might today. Correspondingly, changing the FISA standard to "a" purpose will allow FISA warrants to issue in that class of searches. A lower standard also recognizes that, as national security concerns in the wake of the September 11 attacks have dramatically increased, the constitutional powers of the executive branch have expanded, while judicial competence has correspondingly receded. Amending FISA only recognizes that the Fourth Amendment standards will shift in reaction to our changed national security environment.
Fourth, amending FISA in this manner would be consistent with the Fourth Amendment because it only adapts the statutory structure to a new type of counter-intelligence. FISA was enacted at a time when there was a clear distinction between foreign intelligence threats, which would be governed by more flexible standards, and domestic law enforcement, which was subject to the Fourth Amendment's requirement of probable cause. Even at the time of the act's passage in 1978, however, there was a growing realization that "[Intelligence and criminal law enforcement tend to merge in [the] area" of foreign counterintelligence and counterterrorism. S. Rep. No. 95-701, at 11. September 11's events demonstrate that the fine distinction between foreign intelligence gathering and domestic law enforcement has broken down. Terrorists, supported by foreign powers or interests, had lived in the United States for substantial periods of time, received training within the country, and killed thousands of civilians by hijacking civilian airliners. The attack, while supported from abroad, was carried out from within the United States itself and violated numerous domestic criminal laws. Thus, the nature of the national security threat, while still involving foreign control and requiring foreign counterintelligence, also has a significant domestic component, which may involve domestic law enforcement. Fourth Amendment doctrine, based as it is ultimately upon reasonableness, will have to take into account that national security threats in future cannot be so easily cordoned off from domestic criminal investigation. As a result, it is likely that courts will allow for more mixture between foreign intelligence gathering and domestic criminal investigation, at least in the counter-terrorism context. Changing the FISA standard from "the" purpose to "a" purpose would be consistent with this likely development.
Conclusion
For the foregoing reasons, we believe that changing FISA's requirement that "the" purpose of a FISA search be to collect foreign intelligence to "a" purpose will not violate the Constitution.
_______________
Notes:
1. See also The Federalist No. 34, at 211 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (federal government is to possess "an indefinite power of providing for emergencies as they might arise"); The Federalist No. 41, at 269 (James Madison) ("Security against foreign danger is one of the primitive objects of civil society.. . .The powers requisite for attaining it, must be effectually confided to the federal councils.") Many Supreme Court opinions echo Hamilton's argument that the Constitution presupposes the indefinite and unpredictable nature of the "the circumstances which may affect the public safety," and that the federal government's powers are correspondingly broad. See, e.g.. Dames & Moore v. Regan, 453 U.S. 654,662 (1981) (noting that the President "exercis[es] the executive authority in a world that presents each day some new challenge with which he must deal''); Hamilton v. Regents, 293 U.S. 245,264 (1934) (federal government's war powers are "well-nigh limitless" in extent); Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 506 (1870) ("The measures to be taken in carrying on war ... are not defined [in the Constitution]. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution.''); Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1870) ("The Constitution confers upon Congress expressly power to declare war, grant letters of marque and reprisal, and make rules respecting captures on land and water. Upon the exercise of these powers no restrictions are imposed. Of course the power to declare war involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted.").
2. See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (President has authority to deploy United States armed forces "abroad or to any particular region"); Fleming v. Page, 50 U.S. (9 How.) 603,615 (1850) ("As commander-in-chief, [the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual."); Loving v. United States, 517 U.S. 748,776 (1996) (Scalia,J., concurring in part and concurring in judgment) (The "inherent powers" of the Commander in Chief "are clearly extensive."); Maul v. United States, 274 U.S. 501, 515-16 (1927) (Brandeis & Holmes, JJ., concurring) (President "may direct any revenue cutter to cruise in any waters in order to perform any duty of the service"); Commonwealth of Massachusetts v. Laird, 451 F.2d 26, 32 (1st Cir. 1971) (the President has "power as Commander-in-Chief to station forces abroad"); Ex parte Vallandigham, 28 F.Cas. 874, 922 (C.C.S.D. Ohio 1863) (No. 16,816) (in acting "under this power where there is no express legislative declaration, the president is guided solely by his own judgment and discretion"); Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6,6 (1992) (Barr, A.G.).
3. As Alexander Hamilton explained in The Federalist No. 74, "[o]f 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." The Federalist No. 74, at 500 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). And James Iredell (later an Associate Justice of the Supreme Court) argued in the North Carolina Ratifying Convention that "[f]rom the nature of the thing, the command of armies ought to be delegated to one person only. The secrecy, despatch, and decision, which are necessary in military operations, can only be expected from one person." Debate in the North Carolina Ratifying Convention, in 4 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 107 (2d ed. Ayer Company, Publishers, Inc. 1987) (1888). See also 3 Joseph Story, Commentaries on the Constitution § 1485, at 341 (1833) (in military matters, "[u]nity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when a single magistrate is entrusted exclusively with the power").
4. The Ninth Circuit has reserved the question of whether the "primary purpose" test is too strict. United States v. Sarkissian, 841 F.2d 959, 964 (9th Cir. 1988).
U.S. Department of Justice
Office of Legal Counsel
Office of the Deputy Assistant Attorney General
Washington, DC. 20530
September 25, 2001
MEMORANDUM FOR DAVID S. KRIS ASSOCIATE DEPUTY ATTORNEY GENERAL
From: John C. Yoo, Deputy Assistant Attorney General
Re: Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the "Purpose" Standard for Searches
You have asked for our opinion on the constitutionality of amending the Foreign Intelligence Surveillance Act, 50 U.S.C.§§ 1801-1811 (1994 & West Supp. 2000) ("FISA"), so that a search may be approved when the collection of foreign intelligence is "a purpose" of the search. In its current form, F1SA requires that "the purpose" of the search be for the collection of foreign intelligence. 50 U.S.C. § 1804(a)(7)(B). We believe that this amendment would not violate the Fourth Amendment.
It should be made clear at the outset that the proposed FISA amendment cannot cause a facial violation of the Fourth Amendment. Because "a" purpose would include the current warrant applications in which foreign intelligence is "the" purpose of the search, a significant class of valid searches would continue to fall within the new statutory language. It may be the case that some warrant applications - for example, those instances where criminal investigation constitutes an overwhelming purpose of the surveillance - will be rejected by the FISA court. In those situations, the FISA amendment would not be unconstitutional, so much as the Court would be construing the statute, according to the canon that statutes are to be read to avoid constitutional problems, so as not to require the issuance of a warrant that would go beyond the Fourth Amendment. In other words, the proposed amendment cannot violate the Fourth Amendment because it would simply allow the Department to apply for FISA warrants up to the limit permitted by the Constitution, as determined by the FISA court. Amending FISA merely gives the Department the full flexibility to conduct foreign intelligence surveillance that is permitted by the Constitution itself.
We caution, however, that much will depend on the manner in which the Department chooses to operate within the new standard. Some warrant applications might be rejected by the courts if prosecutors become too involved in the planning and execution of FISA searches. Nonetheless, as we observed in 1995, "the courts have been exceedingly deferential to the government and have almost invariably declined to suppress the evidence, whether they applied the 'primary purpose' test or left open the possibility of a less demanding standard." Memorandum for Michael Vatis, Deputy Director, Executive Office for National Security, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Standards for Searches Under Foreign Intelligence Surveillance Act at 1 (Feb. 14, 1995). We believe that the Department would continue to win such deference from the courts if it continues to ensure that criminal investigation not become a primary purpose of FISA surveillance.
I.
The Fourth Amendment declares that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const, amend. IV (emphasis added). The Amendment also declares that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Id. .
Thus, the touchstone for review is whether a search is "reasonable." See, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995) ("[a]s the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is 'reasonableness'"). When law enforcement undertakes a search to discover evidence of criminal wrongdoing, the Supreme Court has said that reasonableness generally requires a judicial warrant. See id. at 653. But the Court has made clear that a warrant is not required for all government searches. A warrantless search can be constitutional "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." Id.
As a result, the Court properly has found a variety of warrantless government searches to be consistent with the Fourth Amendment. See, e.g., Pennsylvania v. Labron, 518 U.S. 938 (1996) (per curiam) (certain automobile searches); Acton (drug testing of high school athletes); Michigan v. Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (drunk driver checkpoints); Skinner v. Railway Labor Executives' Ass'n., 489 U.S. 602 (1989) (drug testing of railroad personnel); Treasury Employees v. Von Raab, 489 U.S. 656 (1989) (random drug testing of federal customs officers); United States v. Place, 462 U.S. 696 (1983) (temporary seizure of baggage); Michigan v. Summers, 452 U.S. 692 (1981) (detention to prevent flight and to protect law enforcement officers); Terry v. Ohio, 392 U.S. 1 (1968) (temporary stop and limited search for weapons).
In these circumstances, the Court has examined several factors to determine whether a warrantless search is reasonable. As the Court stated just last Term: "When faced with special law-enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable." Illinois v. McArthur, 121 S. Ct. 946,949 (2001). In creating these exceptions to its warrant requirement, the Court has found that, under the totality of the circumstances, the "importance of the governmental interests" has outweighed the "nature and quality of the intrusion on the individual's Fourth Amendment interests." See Tennessee v. Garner, 471 U.S. 1, 8 (1985).
Of particular relevance here, the Court has found warrantless searches reasonable when there are "exigent circumstances," such as a potential threat to the safety of law enforcement officers or third parties. The Court has also recognized that a government official may not need to show the same kind of proof to a magistrate to obtain a warrant for a search unrelated to the investigation of a crime "as one must who would search for the fruits or instrumentalities of crime." Camara v. Municipal Court of San Francisco, 387 U.S. 523,538 (1967). For example, "[w]here considerations of health and safety are involved, the facts that would justify an inference of 'probable cause' to make an inspection are clearly different from those that would justify such an inference where a criminal investigation has been undertaken." Id. See also Indianapolis v. Edmond, 531 U.S. 32,44 (2000) (in context of seizure and exigent circumstances, Fourth Amendment would permit appropriately tailored roadblock to thwart an imminent terrorist attack or catch a dangerous criminal who is likely to flee).
II.
This analysis of Fourth Amendment doctrine demonstrates that the government could conduct searches to obtain foreign intelligence without satisfying all of the requirements applicable in the normal law enforcement context. It is important to understand the current shape of Fourth Amendment law, and how it would apply to the circumstances at hand, in order to evaluate the constitutionality of the proposed amendment to FISA. As we have noted earlier, the Fourth Amendment's reasonableness test for searches generally calls for a balancing of the government's interest against the individual's Fourth Amendment interests. Here, the nature of the government interest is great. In the counter-intelligence field, the government is engaging in electronic surveillance in order to prevent foreign powers or their agents from obtaining information or conducting operations that would directly harm the security of the United States.
To be sure, the Supreme Court has subjected counter-intelligence searches of purely domestic terrorist groups to a warrant requirement. When it first applied the Fourth Amendment to electronic surveillance, the Supreme Court specifically refused to extend its analysis to include domestic searches that were conducted for national security purposes. Katx v. United States, 389 U.S. 347, 358 n.23 (1967); see also Mitchell v. Forsyth, 472 U.S. 511,531 (1985). Later, however, in United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297,299 (1972) ("Keith,"), the Court held that the warrant requirement should apply to cases of terrorism by purely domestic groups. In doing so, the Justices framed the question by explaining that, "[i]ts resolution is a matter of national concern, requiring sensitivity both to the Government's right to protect itself from unlawful subversion and attack and to the citizen's right to be secure in his privacy against unreasonable Government intrusion." While acknowledging that "unless Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered," id. at 312, the Court cautioned that "[t]he danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect 'domestic security.' Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent." Id. at 314. As a result, the Court held that the absence of neutral and disinterested magistrates governing the reasonableness of the search impermissibly left "those charged with [the] investigation and prosecutorial duty [as] the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks." Id at 317.
The court explicitly noted, however, that it was not considering the scope of the President's surveillance power with respect to the activities of foreign powers within or without the country. Id. at 308. And after the Keith decision, lower courts have found that when the government conducts a search, for national security reasons, of a foreign power or its agents, it need not meet the same requirements that would normally apply in the context of criminal law enforcement, In United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), for example, the Fourth Circuit observed that "the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following Keith, 'unduly frustrate,' the President in carrying out his foreign affairs responsibilities." Id. at 913. The Court based this determination on a number of factors, including:
(1) "[a] warrant requirement would reduce the flexibility of executive foreign intelligence initiatives, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations," id.;
(2) "the executive possesses unparalleled expertise to make the decision whether to conduct foreign intelligence surveillance, whereas the judiciary is largely inexperienced in making the delicate and complex decisions that lie behind foreign intelligence surveillance — Few, if any, district courts would be truly competent to judge the importance of particular information to the security of the United States or the 'probable cause' to demonstrate that the government in fact needs to recover that information from one particular source," id. at 913-14; and
(3) the executive branch "is also constitutionally designated as the pre-eminent authority in foreign affairs." Id. at 914.
The Court also recognized, however, that "because individual privacy interests are severely compromised any time the government conducts surveillance without prior judicial approval, this foreign intelligence exception to the Fourth Amendment warrant requirement must be carefully limited to those situations in which the interests of the executive are paramount." Id. at 915. See also United States v. Brown, 484 F. 2d 418 (5 th Cir. 1973), cert. denied, 415 U.S. 960 (1974); United States v. Buck, 548 F.2d 873 (9th Cir.), cert, denied, 434 U.S. 890 (1977); United States v. Clay, 430 F.2d 165 (5th Cir. 1970), rev'd on other grounds, 403 U.S. 698 (1971).
Therefore, the Fourth Circuit held that the government was relieved of the warrant requirement when (1) the object of the search or surveillance is a foreign power, its agent or collaborators since such cases are "most likely to call into play difficult and subtle judgments about foreign and military affairs," 629 F.2d at 915; and (2) "when the surveillance is conducted 'primarily' for foreign intelligence reasons .... because once surveillance becomes primarily a criminal investigation, the courts are entirely competent to make the usual probable cause determination, and because, importantly, individual privacy interests come to the fore and government foreign policy concerns recede when the government is primarily attempting to form the basis for a criminal prosecution." Id.
The factors favoring warrantless searches for national security reasons may be even more compelling under current circumstances than at the time of these lower court decisions. After the attacks on September 11, 2001, the government interest in conducting searches related to fighting terrorism is perhaps of the highest order - the need to defend the nation from direct attack. As the Supreme Court has said, "It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981). The compelling nature of the government's interest here may be understood in light of the Founders' express intention to create a federal government "cloathed with all the powers requisite to the complete execution of its trust." The Federalist No. 23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). Foremost among the objectives committed to that trust by the Constitution is the security of the nation. As Hamilton explained in arguing for the Constitution's adoption, because "the circumstances which may affect the public safety" are not "reducible within certain determinate limits,"
it must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defence and protection of the community, in any matter essential to its efficacy.
Id. at 147-48. [1] Within the limits that the Constitution itself imposes, the scope and distribution of the powers to protect national security must be construed to authorize the most efficacious defense of the nation and its interests in accordance "with the realistic purposes of the entire instrument." Lichter v. United States, 334 U.S. 742, 782 (1948). Nor is the authority to protect national security limited to that necessary "to victories in the field." Application of Yamashita, 327U.S. 1,12(1946). The authority over national security "carries with it the inherent power to guard against the immediate renewal of the conflict." Id.
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 grave and unforeseen emergencies. Intelligence gathering is a necessary function that enables the President to carry out that authority. The Constitution, for example, vests in the President the power to deploy military force in the defense of the United States by the Vesting Clause, U.S. Const, art. II, § 1, cl. 1, and by the Commander in Chief Clause, id., § 2, cl. 1. [2] Intelligence operations, such as electronic surveillance, very well may be necessary and proper for the effective deployment and execution of military force against terrorists. Further, the Constitution makes explicit the President's obligation to safeguard the nation's security by whatever lawful means are available by imposing on him the duty to "take Care that the Laws be faithfully executed." Id., § 3. The implications of constitutional text and structure are confirmed by the practical consideration that national security decisions often require the unity in purpose and energy in action that characterize the Presidency rather than Congress. [3]
Judicial decisions since the beginning of the Republic confirm the President's constitutional power and duty to repel military action against the United States and to take measures to prevent the recurrence of an attack. As Justice Joseph Story said long ago, "[i]t may be fit and proper for the government, in the exercise of the high discretion confided to the executive, for great public purposes, to act on a sudden emergency, or to prevent an irreparable mischief, by summary measures, which are now 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. See, e.g.. The Prize Cases, 67 U.S. (2 Black) 635,668 (1862) ("If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force... without waiting for any special legislative authority."); Kahanamoku, 327 U.S. at 336 (Stone, C.J., concurring) ("Executive has broad discretion in determining when the public emergency is such as to give rise to the necessity" for emergency measures); United States v. Smith, 27 F. Cas. 1192,1230 (C.C.D.N.Y. 1806) (No. 16,342) (Paterson, Circuit Justice) (regardless of statutory authorization, it is "the duty ... of the executive magistrate ... to repel an invading foe"); see also 3 Story, Commentaries § 1485 ("[t]he command and application of the public force ... to maintain peace, and to resist foreign invasion" are executive powers).
This Office has maintained, across different administrations and different political parties, that the President's constitutional responsibility to defend the nation may justify reasonable, but warrantless, counter-intelligence searches. In 1995, we recognized that the executive branch needed flexibility in conducting foreign intelligence surveillance. Memorandum for Michael Vatis, Deputy Director, Executive Office for National Security, From Walter Dellinger, Assistant Attorney General, Re: Standards for Searches Under Foreign Intelligence Surveillance Act (Feb. 14,1995). In 1980, this Office also said that "the lower courts - as well as this Department - have frequently concluded that authority does exist in the President to authorize such searches regardless of whether the courts also have the power to issue warrants for those searches." Memorandum for the Attorney General, from John M. Harmon, Assistant Attorney General, Re: Inherent Authority at 1 (Oct. 10, 1980). Based on similar reasoning, this Office recently concluded that the President could receive materials, for national defense purposes, acquired through Title III surveillance methods or grand juries. See Memorandum for Frances Fragos Townsend, Counsel, Office of Intelligence Policy and Review, from Randolph D. Moss, Assistant Attorney General, Re: Title III Electronic Surveillance Material and the Intelligence Community (Oct. 17, 2000); Memorandum for Gerald A. Schroeder, Acting Counsel, Office of Intelligence Policy and Review, from Richard L. Shiffrin, Deputy Assistant Attorney General, Re: Grand Jury Material and the Intelligence Community (Aug. 14, 1997); Disclosure of Grand Jury Matters to the President and Other Officials, 17 Op. O.L.C 59 (1993). As the Commander-in-Chief, the President must be able to use whatever means necessary to prevent attacks upon the United States; this power, by implication, includes the authority to collect information necessary for its effective exercise.
This examination of the government's interest demonstrates that the current situation, in which Congress has recognized the President authority to use force in response to a direct attack on the American homeland, has changed the calculus of a reasonable search. The government's interest has changed from merely conducting foreign intelligence surveillance to counter intelligence operations by other nations, to one of preventing terrorist attacks against American citizens and property within the continental United States itself. The courts have observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others. See, e.g., Romero v. Board of County Commissioners, 60 F.3d 702 (10 th Cir. 1995), cert, denied, 516 U.S. 1073 (1996); O'Neal v. DeKalb County, 850 F.2d 653 (11th Cir. 1988). Here, for Fourth Amendment purposes, the right to self-defense is not that of an individual, but that of the nation and of its citizens. Cf. In re Neagle, 135 U.S. 1 (1890); The Prize Cases, 67U.S. (2 Black) 635 (1862). If the government's heightened interest in self-defense justifies the use of deadly force, then it certainly would also justify warrantless searches.
III.
It is against this background that the change to FISA should be understood. Both the executive branch and the courts have recognized that national security searches against foreign powers and their agents need not comport with the same Fourth Amendment requirements that apply to domestic criminal investigations. FISA embodies idea that, in this context, the Fourth Amendment applies differently than in the criminal context. Nonetheless, FISA itself is not required by the Constitution, nor is it necessarily the case that its current standards match exactly to Fourth Amendment standards. Rather, like the warrant process in the normal criminal context, FISA represents a statutory procedure that, if used, will create a presumption that the surveillance is reasonable under the Fourth Amendment. Thus, it is wholly appropriate to amend FISA to bring its provisions into line with changes in the Fourth Amendment's reasonableness calculus. As outlined above, that calculus has shifted in light of the September 11 attacks and the increased counter-terrorism threat.
This is not to say that FISA searches would be constitutional no matter how little foreign intelligence purpose is present in the warrant application. We do not disagree with the analysis of the courts that it is the national security element in the search that justifies its exemption from the standard law enforcement warrant process. After the enactment of FISA, for example, courts have emphasized the distinction between searches done to collect foreign intelligence and those undertaken for pursuing criminal prosecutions. Although this may be due, in part, to a statutory construction of the FISA provisions, the courts' language may be seen as having broader application. As the Second Circuit has emphasized, although courts, even prior to the enactment of FISA, concluded that the collection of foreign intelligence information constituted an exception to the warrant requirement, "the governmental interests presented in national security investigations differ substantially from those presented in traditional criminal prosecutions." United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984). The Duggan Court held that FISA did not violate the Fourth Amendment because the requirements of FISA "provide an appropriate balance between the individual's interest in privacy and the government's need to obtain foreign intelligence information." Id. at 74. However, the court's holding was made in the context of acknowledging the reasonableness of "the adoption of prerequisites to surveillance that are less stringent than those precedent to the issuance of a warrant for a criminal investigation." Id. at 73. As such, the court's finding that the purpose of the surveillance was to secure foreign intelligence information, and not directed towards criminal prosecution, may very well be of constitutional magnitude.
Similarly, the Ninth Circuit found that the lowered probable cause showing required by FISA is reasonable because, although the application need not state that the surveillance is likely to uncover evidence of a crime, "the purpose of the surveillance is not to ferret out criminal activity but rather to gather intelligence, [and therefore] such a requirement would be illogical." United States v. Cavanagh, 807 F.2d 787, 790-91 (9th Cir. 1987) (Kennedy, J.). [4] And consistent with both the language of the Second and Ninth Circuits, the First Circuit, in upholding the constitutionality of FISA, explained that "[although evidence obtained under FISA subsequently may be used in criminal prosecutions, the investigation of criminal activity cannot be the primary purpose of the surveillance [and therefore] [t]he act is not to be used as an end-run around the Fourth Amendment's prohibition of warrantless searches." United States v. Johnson, 952 F.2d 565, 572 (l th Cir. 1991) (citations omitted), cert, denied, 506 U.S. 816 (1992).
On the other hand, it is also clear that while FISA states that "the" purpose of a search is for foreign surveillance, that need not be the only purpose. Rather, law enforcement considerations can be taken into account, so long as the surveillance also has a legitimate foreign intelligence purpose. FISA itself makes provision for the use in criminal trials of evidence obtained as a result of FISA searches, such as rules for the handling of evidence obtained through FISA searches, 50 U.S.C. §§ 1801(h) & 1806, and procedures for deciding suppression motions, id. § 1806(e). In approving FISA, the Senate Select Committee on Intelligence observed: "U.S. persons may be authorized targets, and the surveillance is part of an investigative process often designed to protect against the commission of serious crimes such as espionage, sabotage, assassination, kidnapping, and terrorist acts committed by or on behalf of foreign powers. Intelligence and criminal law enforcement tend to merge in this area." S. Rep. No. 95-701, at 10-11 (1978). The Committee also recognized that "foreign counterintelligence surveillance frequently seeks information needed to detect or anticipate the commission of crimes," and that "surveillances conducted under [FISA] need not stop once conclusive evidence of a crime is obtained, but instead may be extended longer where protective measures other than arrest and prosecution are more appropriate." Id. at 11.
The courts agree that the gathering of counter-intelligence need not be the only purpose of a constitutional FISA search. An "otherwise valid FISA surveillance is not tainted simply because the government can anticipate that the fruits of such surveillance may later be used, as allowed by § 1806(b), as evidence in a criminal trial." Duggan, 743 F.2d at 78. This is due to the recognition that "in many cases the concerns of the government with respect to foreign intelligence will overlap those with respect to law enforcement." Id. In order to police the line between legitimate foreign intelligence searches and law enforcement, most courts have adopted the test that the "primary purpose" of a FISA search is to gather foreign intelligence. See id.; United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991); United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987), cert, denied, 486 U.S. 1010 (1988); United States v. Badia, 827 F.2d 1458,1464 (11th Cir. 1987), cert, denied, 485 U.S. 937 (1988). Not all courts, however, have felt compelled to adopt the primary purpose test. The Ninth Circuit has explicitly reserved the question whether the ''primary purpose" is too strict and the appropriate test is simply whether there was a legitimate foreign intelligence purpose. United States v. Sarkissian, 841 F.2d 959,964 (9th Cir. 1988). No other Circuit has explicitly held that such a formulation would be unconstitutional.
In light of this case law and FISA's statutory structure, we do not believe that an amendment of FISA from "the" purpose to "a" purpose would be unconstitutional. To be sure, it is difficult to predict with exact certainty where the courts would draw the line in the context of balancing individual privacy interests and government foreign policy concerns. So long, however, as the government has a legitimate objective in obtaining foreign intelligence information, it should not matter whether it also has a collateral interest in obtaining information for a criminal prosecution. As courts have observed, the criminal law interests of the government do not taint a FISA search when its foreign intelligence objective is primary. This implies that a FISA search should not be invalid when the interest in criminal prosecution is significant, but there is still a legitimate foreign intelligence purpose for the search. This concept flows from the courts' recognition that the concerns of government with respect to foreign policy will often overlap with those of law enforcement.
Further, there are other reasons that justify the constitutionality of the proposed change to FISA. First, as an initial matter, the alteration in the statute could not be facially unconstitutional. As the Court has held, in order to succeed a facial challenge to a statute must show that the law is invalid "in every circumstance." Babbitt v. Sweet Home Chapter, 515 U.S. 687,699 (1995). As the Court made clear in United States v. Salerno, 481 U.S. 739 (1987), "[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." Id. at 745. Such a challenge would fail here. Even if FISA were amended to require that "a" purpose for the search be the collection of foreign intelligence, that class of searches would continue to include both searches in which foreign intelligence is the only purpose and searches in which it is the primary purpose - both permissible under current case law.
Second, amending FISA would merely have the effect of changing the statute to track the Constitution. Courts have recognized that the executive branch has the authority to conduct warrantless searches for foreign intelligence purposes, so long as they are reasonable under the Fourth Amendment. Although the few courts that have addressed the issue have followed a primary purpose test, it is not clear that the Constitution, FISA, or Supreme Court case law requires that test. It may very well be the case that the primary purpose test is more demanding than that called for by the Fourth Amendment's reasonableness requirement. Adopting the proposed FISA amendment will continue to make clear that the government must have a legitimate foreign surveillance purpose in order to conduct a FISA search. It would also recognize the possibility that because the executive can more fully assess the requirements of national security than can the courts, and because the President has a constitutional duty to protect the national security, the courts should not deny him the authority to conduct intelligence searches even when the national security purpose is secondary to criminal prosecution. At the same time, however, it still remains the province of the FISA court to determine whether such searches are constitutional by following a primary purpose test, or a less severe standard, such as requiring only a "significant" or "substantial" purpose. By altering the FISA standard to "a" purpose, Congress would allow the government to file applications that would be consistent with whatever Fourth Amendment standard the FISA court chooses.
To be sure, the government might seek a FISA warrant where "a" foreign intelligence purpose is present, but "the primary" purpose is to obtain evidence in furtherance of a criminal investigation. The fact that the search is aimed at furthering a criminal investigation, which only incidentally promotes the national security and our foreign affairs interests, probably would not exempt the search from the usual probable cause requirements of the Fourth Amendment. Once the objective in acquiring the information is aimed primarily at effecting a criminal prosecution, as opposed to gathering intelligence information for counterintelligence purposes, the case may be more like Keith than it is like Truong Dinh Hung. Rather than being a matter of judicial second-guessing of the executive branch's determination that a foreign intelligence search is necessary, the objective would center instead on the desire to obtain information for a criminal prosecution.
In these circumstances, however, the FISA amendment would not permit unconstitutional searches. A court could still conclude that there is no real distinction between the law enforcement objective with incidental national security considerations, despite the fact that it arises in the foreign intelligence context, and the objective at issue in Keith. Once the primary purpose of the search is to further a criminal prosecution of one or more individuals, then absent exigent circumstances it would seem that the core principles of the Fourth Amendment are triggered, requiring the reasonableness determination of a neutral magistrate based on the full probable cause standard of the Fourth Amendment. No longer would it be a question of conducting the "delicate and complex decisions that lie behind foreign intelligence surveillance," Truong Dinh Hung, 629 F.2d at 913, nor would it primarily be a question of the "importance of particular information to the security of the United States" or "diplomacy and military affairs," id. at 913-14. A court could decide that the warrant instead asked whether there are sufficient grounds to search premises or to conduct surveillance of private individuals for purposes of pursuing criminal prosecutions. In such a context, "individual privacy interests come to the fore and government foreign policy concerns recede." Id. at 915.
A FISA court still remains an Article III court. As such, it still has an obligation to reject FISA applications that do not truly qualify for the relaxed constitutional standards applicable to national security searches. Rejecting an individual application, however, would not amount to a declaration that the "a" purpose standard was unconstitutional. Rather, the court would only be interpreting the new standard so as not to violate the Constitution, in accordance with the canon of statutory construction that courts should read statutes to avoid constitutional difficulties. See Public Citizen v. Department of Justice, 491 U.S. 440,466 (1989); Edward J. DeBartolo Corp, v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575 (1988). Amending FISA to require only "a" purpose merely removes any difference between the statutory standard for reviewing FISA applications and the constitutional standard for national security searches.
Third, it is not unconstitutional to establish a standard for FISA applications that may be less demanding than the current standard, because it seems clear that the balance of Fourth Amendment considerations has shifted in the wake of the September 11 attacks. As discussed earlier in this memo, the reasonableness of a search under the Fourth Amendment depends on the balance between the government's interests and the privacy rights of the individuals involved. As a result of the direct terrorist attacks upon the continental United States, the government's interest has reached perhaps its most compelling level, that of defending the nation from assault. This shift upward in governmental interest has the effect of expanding the class of reasonable searches under the Fourth Amendment. Thus, some surveillance that might not have satisfied the national security exception for warrantless searches before September 11, might today. Correspondingly, changing the FISA standard to "a" purpose will allow FISA warrants to issue in that class of searches. A lower standard also recognizes that, as national security concerns in the wake of the September 11 attacks have dramatically increased, the constitutional powers of the executive branch have expanded, while judicial competence has correspondingly receded. Amending FISA only recognizes that the Fourth Amendment standards will shift in reaction to our changed national security environment.
Fourth, amending FISA in this manner would be consistent with the Fourth Amendment because it only adapts the statutory structure to a new type of counter-intelligence. FISA was enacted at a time when there was a clear distinction between foreign intelligence threats, which would be governed by more flexible standards, and domestic law enforcement, which was subject to the Fourth Amendment's requirement of probable cause. Even at the time of the act's passage in 1978, however, there was a growing realization that "[Intelligence and criminal law enforcement tend to merge in [the] area" of foreign counterintelligence and counterterrorism. S. Rep. No. 95-701, at 11. September 11's events demonstrate that the fine distinction between foreign intelligence gathering and domestic law enforcement has broken down. Terrorists, supported by foreign powers or interests, had lived in the United States for substantial periods of time, received training within the country, and killed thousands of civilians by hijacking civilian airliners. The attack, while supported from abroad, was carried out from within the United States itself and violated numerous domestic criminal laws. Thus, the nature of the national security threat, while still involving foreign control and requiring foreign counterintelligence, also has a significant domestic component, which may involve domestic law enforcement. Fourth Amendment doctrine, based as it is ultimately upon reasonableness, will have to take into account that national security threats in future cannot be so easily cordoned off from domestic criminal investigation. As a result, it is likely that courts will allow for more mixture between foreign intelligence gathering and domestic criminal investigation, at least in the counter-terrorism context. Changing the FISA standard from "the" purpose to "a" purpose would be consistent with this likely development.
Conclusion
For the foregoing reasons, we believe that changing FISA's requirement that "the" purpose of a FISA search be to collect foreign intelligence to "a" purpose will not violate the Constitution.
_______________
Notes:
1. See also The Federalist No. 34, at 211 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (federal government is to possess "an indefinite power of providing for emergencies as they might arise"); The Federalist No. 41, at 269 (James Madison) ("Security against foreign danger is one of the primitive objects of civil society.. . .The powers requisite for attaining it, must be effectually confided to the federal councils.") Many Supreme Court opinions echo Hamilton's argument that the Constitution presupposes the indefinite and unpredictable nature of the "the circumstances which may affect the public safety," and that the federal government's powers are correspondingly broad. See, e.g.. Dames & Moore v. Regan, 453 U.S. 654,662 (1981) (noting that the President "exercis[es] the executive authority in a world that presents each day some new challenge with which he must deal''); Hamilton v. Regents, 293 U.S. 245,264 (1934) (federal government's war powers are "well-nigh limitless" in extent); Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 506 (1870) ("The measures to be taken in carrying on war ... are not defined [in the Constitution]. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution.''); Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1870) ("The Constitution confers upon Congress expressly power to declare war, grant letters of marque and reprisal, and make rules respecting captures on land and water. Upon the exercise of these powers no restrictions are imposed. Of course the power to declare war involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted.").
2. See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (President has authority to deploy United States armed forces "abroad or to any particular region"); Fleming v. Page, 50 U.S. (9 How.) 603,615 (1850) ("As commander-in-chief, [the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual."); Loving v. United States, 517 U.S. 748,776 (1996) (Scalia,J., concurring in part and concurring in judgment) (The "inherent powers" of the Commander in Chief "are clearly extensive."); Maul v. United States, 274 U.S. 501, 515-16 (1927) (Brandeis & Holmes, JJ., concurring) (President "may direct any revenue cutter to cruise in any waters in order to perform any duty of the service"); Commonwealth of Massachusetts v. Laird, 451 F.2d 26, 32 (1st Cir. 1971) (the President has "power as Commander-in-Chief to station forces abroad"); Ex parte Vallandigham, 28 F.Cas. 874, 922 (C.C.S.D. Ohio 1863) (No. 16,816) (in acting "under this power where there is no express legislative declaration, the president is guided solely by his own judgment and discretion"); Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6,6 (1992) (Barr, A.G.).
3. As Alexander Hamilton explained in The Federalist No. 74, "[o]f 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." The Federalist No. 74, at 500 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). And James Iredell (later an Associate Justice of the Supreme Court) argued in the North Carolina Ratifying Convention that "[f]rom the nature of the thing, the command of armies ought to be delegated to one person only. The secrecy, despatch, and decision, which are necessary in military operations, can only be expected from one person." Debate in the North Carolina Ratifying Convention, in 4 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 107 (2d ed. Ayer Company, Publishers, Inc. 1987) (1888). See also 3 Joseph Story, Commentaries on the Constitution § 1485, at 341 (1833) (in military matters, "[u]nity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when a single magistrate is entrusted exclusively with the power").
4. The Ninth Circuit has reserved the question of whether the "primary purpose" test is too strict. United States v. Sarkissian, 841 F.2d 959, 964 (9th Cir. 1988).
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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
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PART 2 OF 3
The PCA "was originally a section inserted into an Army Appropriation Act as a backwash of the Reconstruction period following the Civil War. Its legislative history indicates that the immediate objective of the legislation was to put an end to the use of federal troops to police state elections in the ex-Confederate states where the civil power had been reestablished." Chandler v. United States, 171 F.2d 921, 936 (1st Cir. 1948) (Magruder, J.), cert. denied, 336 U.S. 918 (1949); see generally Charles Doyle, Congressional Research Service Report for Congress: The Posse Comitatus Act & Related Matters: The Use of the Military to Execute Civilian Law 9-11 (June 1, 2000). Before the PCA was enacted, Attorney General Cushing had opined that under the Judiciary Act of 1789, a federal marshal, like a sheriff, had the authority to raise a posse comitatus "to aid [him] in the execution of his duty." Extradition of Fugitives from Service, 6 Op. Att'y Gen. 466, 472-73 (1854). A posse comitatus, which included everyone in a district more than fifteen years old, could include "the military of all denominations, militia, soldiers, marines, all of whom are alike bound to obey the commands of a sheriff or marshal. The fact that they are organized as military bodies, under the immediate command of their own officers, does not in any wise affect their legal character." Id. at 473. See also Employment of the Military as a Posse, 16 Op. Att'y Gen. 162, 163 (1878) ("It has been the practice of the Government since its organization ... to permit the military forces of the United States to be used in subordination to the marshal of the United States when it was deemed necessary that he should have their aid in order to the enforcement of his process."). The PCA rejected these opinions and practices and barred the use of the military domestically "as a posse comitatus or otherwise to execute the laws," 18 U.S.C. § 1385 (emphasis added). [22]
Both the express language of the PCA and its history show clearly that it was intended to prevent the use of the military for domestic law enforcement purposes. It does not address the deployment of troops for domestic military operations against potential attacks on the United States. Both the Justice Department and the Defense Department have accordingly interpreted the PCA not to bar military deployments that pursue a military or foreign policy function. In Application of the Posse Comitatus Act to Assistance to the United States National Central Bureau, 13 Op. O.L.C. 195 (1989), our Office cited and agreed with a Department of Defense regulation that interpreted the PCA not to bar military actions undertaken primarily for a military purpose. We said (id. at 197):
Because using military force to combat terrorist attacks would be for the purpose of protecting the nation's security, rather than executing the laws, domestic deployment in the current situation would not violate the PCA.
Central to our conclusion that the PCA does not apply is the distinction between "military" and "law enforcement" purpose. To be sure, distinguishing between the two functions is no easy matter. This is not only for the general reason that "the President has discretionary responsibilities in a broad variety of areas, many of them sensitive. In many cases it would be difficult to determine which of the President's innumerable 'functions' encompassed a particular action." Nixon v. Fitzgerald, 457 U.S. at 756. It is also because, in the conflict against terrorism, national security and law enforcement activities, objectives and interests may inevitably overlap.
For example, the September 11 attacks were both acts of war and crimes under United States law. Future terrorist incidents could continue to have both aspects. If the President were to deploy the Armed Forces within the United States in order to engage in counter-terrorism operations, their actions could resemble, overlap with, and assist ordinary law enforcement activity. Military action might encompass making arrests, seizing documents or other property, searching persons or places or keeping them under surveillance, intercepting electronic or wireless communications, setting up roadblocks, interviewing witnesses, and searching for suspects. Moreover, the information gathered in such efforts could be of considerable use to federal prosecutors if the Government were to prosecute against captured terrorists.
In attempting to explain a distinction between these two executive functions, we would normally rely on judicial decisions and administrative precedents. In the present circumstances, however, few if any precedents exist. There have been rare occasions in recent decades in which Presidents have deployed the military within the United States, pursuant to constitutional or statutory authority or both, in order to address grave threats to civil order. Thus, in Alabama in 1963, in Mississippi in 1962, and in Arkansas in 1957, Presidents deployed troops within the United States to meet threats of mass, violent resistance to efforts to end racial segregation. See President's Power to Use Federal Troops to Suppress Resistance to Enforcement of Federal Court Orders -- Little Rock, Arkansas, 41 Op. Att'y Gen. 313, 326-29 (1957) (advising the President that he had both constitutional authority and authority under 10 U.S.C. §§ 332 & 333 to deploy troops in Little Rock, Arkansas). Again, in 1967, the President, pursuant to 10 U.S.C. § 331, "ordered federal troops to assist local authorities at the time of the civil disorders in Detroit, Michigan, in the summer of 1967 and during the disturbances that followed the assassination of Dr. Martin Luther King." Laird v. Tatum, 408 U.S. 1, 4-5 (1972); see also id. at 3 n.2 (quoting Attorney General's letter to State Governors outlining prerequisites for Presidential invocation of § 331). But these episodes did not produce judicial decisions of significant help here. See, e.g., Alabama v. United States, 373 U.S. 545 (1963) (per curiam). Factually as well as legally, moreover, those deployments were markedly different from those envisaged here.
Yet we are not wholly without useful precedents. We have recently reviewed proposed amendments to the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801-11 (1994 & West Supp. 2000) (the "FISA"). See Memorandum for David S. Kris, Associate Deputy Attorney General, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the "Purpose" Standard for Searches (Sept. 25, 2001). As we explained, FISA arose out of a background in which the Supreme Court had declined to rule on the President's constitutional authority to order warrantless electronic surveillance of foreign powers and their agents within the United States. See United States v. United States District Court, 407 U.S. 297, 308 (1972); Katz v. United States, 389 U.S. 347, 358 n.23 (1967). Lower courts, however, have held that due to the President's constitutional superiority in foreign affairs, and the unsuitability of foreign affairs questions for judicial resolution, he could engage in warrantless searches of foreign powers or their agents for national security purposes. See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908, 913, 915 (4th Cir. 1980) United States v. Butenko, 494 F.2d 593 (en banc), cert. denied, 419 U.S. 881(1974); United States v. Brown, 484 F.2d 418 (1973), cert. denied, 415 U.S. 960 (1974).
Enacted in 1978, FISA created a special procedure by which the Government may obtain warrants for foreign intelligence work on the basis of judicial review of an application for such a warrant that had been approved by the Attorney General. In support of such an application, the Government is required to certify, among other things, that "the purpose" of the proposed search or surveillance is "to obtain foreign intelligence information," 50 U.S.C. § 1804 (a)(7)(B). In reviewing the application, therefore, the FISA courts have been required to consider whether "the government is primarily attempting to form the basis for a criminal prosecution," Truong Dinh Hung, 629 F.2d at 915, or is indeed acting for the purpose of obtaining foreign intelligence. Distinguishing between "law enforcement" and "foreign intelligence" seems, if anything, more difficult than distinguishing between "law enforcement" and "military" functions. Yet the FISA courts seem to have found little difficulty in applying the statute's "purpose" test. [24] This, we believe, reflects the care and circumspection with which the executive branch itself reviews and prepares FISA applications, and the courts' justified confidence in the executive branch's self-monitoring. Likewise here, we believe that the courts will defer to the executive branch's representations that the deployment of the Armed Forces furthers military purposes, if the executive institutes and follows careful controls.
We believe that the Department of Defense could take steps to make clear that a deployment of troops is for a military, rather than a law enforcement, purpose. The object of such steps would be to emphasize that a specific military operation is intended to counter a terrorist attack, thus furthering a national security purpose, rather than to apprehend suspects or to secure evidence for a criminal prosecution. Any criteria or procedures for distinguishing domestic counter-terrorist military operations from operations involving the Armed Forces that have primarily a law enforcement character would, of course, have to be framed, interpreted and applied in a manner that would not inhibit military effectiveness. Furthermore, domestic uses of the Armed Forces for military purposes in counter-terrorist actions may also promote the goals of the anti-terrorism portions of the U.S. criminal code. It also bears emphasizing again that it rests within the President's discretion to determine when certain circumstances -- such as the probability that a terrorist attack will succeed, the number of lives at risk, the available window of opportunity to stop the terrorists, and the other exigencies of the moment -- justify using the military to intervene. In this memorandum, we shall not recommend particular tests or procedures for consideration by the Secretary of Defense. We will be pleased to work with the Department of Defense and with other interested departments and agencies in devising an appropriate list of factors to be considered in establishing whether there is a military purpose for a domestic use of the Armed Forces in a counter-terrorist action.
B.
Even if the PCA were generally held to apply to the use of the military domestically in an anti-terrorism role, the statute still would not bar such a deployment. The PCA includes both a constitutional and a statutory exception: it excludes military actions taken "in cases and under circumstances expressly authorized by the Constitution or Act of Congress." Both of these exceptions apply to the use of the Armed Forces in response to the September 11 attacks.
In light of Part II's review of the President's inherent powers, it should be clear that the PCA's constitutional exception has been triggered. According to one interpretation of the PCA's legislative history, "the debates ... reveal that the exception for the Constitution represented a compromise designed to enable the bill to pass, rather than a Congressional recognition of specific Presidential authority under the Constitution." O'Shaughnessy, supra n.22, at 712. Whether Congress in 1878 recognized the President's constitutional authority is, however, not critical. By its own terms, the PCA excludes from its coverage any use of the military for constitutional purposes. As Attorney General Brownell noted in reviewing the PCA's legislative history, "[t]here are in any event grave doubts as to the authority of the Congress to limit the constitutional powers of the President to enforce the laws and preserve the peace under circumstances which he deems appropriate." President's Power to Use Federal Troops to Suppress Resistance to Enforcement of Federal Court Orders - Little Rock, Arkansas, 41 Op. Att'y Gen. 313, 331 (1957). Thus, the dispositive question is whether the President is deploying troops pursuant to a plenary constitutional authority. Here, as we have shown earlier, that is clearly the case. The President would be deploying the military pursuant to his powers as Chief Executive and Commander in Chief in response to a direct attack on the United States. Thus, the PCA by its own terms does not apply to the domestic use of the military in a counter-terrorism role.
Even if the PCA's constitutional exception were not triggered, two statutes, Pub. L. No. 107-40 and 10 U.S.C. § 333 (2000) would allow the President to avoid application of the PCA; [25] First, as we have discussed, Pub. L. No. 107-40 authorizes "the use of United States Armed Forces against those responsible for the recent attacks launched against the United States." This authorization does not distinguish between deployment of the military either at home or abroad, nor does it make any distinction between use of the Armed Force for law enforcement or for military purposes. Rather, it simply authorizes the use of force against terrorists linked to the September 11 attacks. Thus, Pub. L. No. 107-40 provides the statutory authorization envisioned by the PCA's drafters to allow the use of the military domestically, whether for law enforcement purposes or not.
Second, 10 U.S.C. § 333 provides another statutory exception to the PCA. That provision reads:
Attorneys General have consistently read this statute as authorizing the domestic use of the military. Interpreting a companion statute, now codified as 10 U.S.C. § 332 (2000), Attorney General Brewster opined that it "expressly authorized [the President] to employ the military forces of the United States to aid in enforcing the laws" upon the determination that such enforcement was being obstructed and resisted by "powerful combinations of outlaws and criminals." Suppression of Lawlessness in Arizona, 17 Op. Att'y Gen. 333, 334-35 (1882). Accordingly, he concluded, the exception in the PCA for statutorily authorized uses of the military was triggered. Id. at 335; see also Suppression of Unlawful Organizations in Arizona, 17 Op. Att'y Gen. 242 (1881). During the emergency caused by threats of mass violence in response to the desegregation of the public schools of Little Rock, Arkansas, Attorney General Brownell advised the President that he had the authority, both under the Constitution and under statutes including § 333, "to call the National Guard into service and to use those forces, together with such of the Armed Forces as you considered necessary, to suppress the domestic violence, obstruction and resistance of law then and there existing." President's Power to Use Federal Troops to Suppress Resistance to Enforcement of Federal Court Orders - Little Rock, Arkansas, 41 Op. Att'y Gen. at 326. If invoked, [27] the Attorney General advised, this statute would obviate the application of the PCA. More recently, the Office of Legal Counsel advised that President George H. W. Bush could deploy federal troops in Los Angeles in 1992 to suppress mass violence and to restore law and order there under his authority under chapter 15 of Title 10.
We think it plain that the President could find that the present circumstances justify the invocation of § 333. Here, an unlawful terrorist group has hijacked civilian airliners and used them to kill thousands of civilians by crashing them into the World Trade Center and the Pentagon. These terrorists have engaged in "domestic violence" within the states of New York and Virginia and have violated numerous federal laws. See, e.g., 49 U.S.C. § 46502 (1994 & Supp. V 1999) (Aircraft Piracy); 18 U.S.C. § 32 (1994 & Supp. V 1999) (Aircraft Sabotage); 18 U.S.C. § 1111 (1994) (Murder Within the Special Territorial Jurisdiction of the United States); 18 U.S.C. § 1114 (Supp. V 1999) (Murder of Federal Employees); 18 U.S.C. § 844(i) (Supp. V 1999) (Malicious Damage or Destruction by Means of Fire or Explosive of Any Building Used in Interstate or Foreign Commerce); 18 U.S.C. § 844(f) (Supp. V 1999) (Malicious Damage or Destruction By Means of Fire or Explosive to Any Building Owned or Possessed by the United States); 18 U.S.C. § 2332b (Supp. V 1999) (Terrorist Acts Transcending National Boundaries); 18 U.S.C. § 1962 (1994) (RICO). The Al Qaeda group apparently has also threatened to attack airports and public gatherings, and has studied the use of biological or chemical warfare against the United States. Section 333 provides the President with the statutory authority to use the military to respond to such coordinated, violent terrorist attacks within the continental United States. Thus, even if military deployment here were to be considered to have a law enforcement, rather than military, character, it would still be authorized by federal law. As a result, action under that statutory authority would also obviate application of the PCA.
Summary. We conclude that the PCA would not apply to the use of the Armed Forces by the President domestically to deter and prevent terrorist acts within the United States. Use of the Armed Forces would promote a military, rather than a law enforcement, purpose. In any event, the proposed Presidential deployments are exempt from the PCA, because the President has both constitutional and statutory authorization to use military forces in the present context.
V.
Having concluded that the President has the legal and constitutional authority to use military force within the United States to respond to and combat future acts of terrorism, and that the Posse Comitatus Act does not bar deployment, we turn to the Fourth Amendment. The Fourth Amendment states that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV.
A.
The Fourth Amendment requires that police searches and seizures not be "unreasonable." If such an intrusion qualifies as a full "search" or "seizure" (rather than, say, an investigative police "stop"), the Supreme Court has held that it must ordinarily be based upon "probable cause." See, e.g., Dunaway v. New York, 442 U.S. 200, 212 (1979) (affirming "the general principle that Fourth Amendment seizures must be supported by the 'long-prevailing standards' of probable cause"). In addition to requiring probable cause in order to demonstrate reasonableness, the Court has concluded that in the normal law enforcement context the Government generally must obtain a warrant before conducting a search. [28] Nonetheless, the Court has recognized several areas in which warrantless searches will be considered reasonable under the Fourth Amendment. See, e.g., Pennsylvania v. Labron, 518 U.S. 938 (1996) (per curiam) (certain automobile searches); Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) (drug testing of high school athletes); Michigan Dept of State Police v. Sitz, 496 U.S. 444 (1990) (drunk driver checkpoints); Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 (1989) (drug testing of railroad personnel); National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (random drug testing of federal customs officers); United States v. Place, 462 U.S. 696 (1983) (temporary seizure of baggage); Michigan v. Summers, 452 U.S. 692 (1981) (detention to prevent flight and to protect law enforcement officers); Terry v. Ohio, 392 U.S. 1 (1968) (temporary stop and limited search for weapons).
In the normal domestic law enforcement context, the use of deadly force is considered a "seizure" under the Fourth Amendment. The Supreme Court has examined the constitutionality of the use of deadly force under an objective "reasonableness" standard. See Tennessee v. Garner, 471 U.S. 1, 7, 11 (1985). The question whether a particular use of deadly force is "reasonable" requires an assessment of "the totality of the circumstances" that balances "'the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion."' Id. at 8-9 (quoting United States v. Place, 462 U.S. 696, 703 (1983)). Because "[t]he intrusiveness of a seizure by means of deadly force is unmatched," id. at 9, the governmental interests in using such force must be powerful. Deadly force, however, may be justified if the danger to the officer's or an innocent third party's life or safety is sufficiently great. See Memorandum to Files, from Robert Delahunty, Special Counsel, Office of Legal Counsel, Re: Use of Deadly Force Against Civil Aircraft Threatening to Attack 1996 Summer Olympic Games (Aug. 19, 1996).
As a matter of the original understanding, the Fourth Amendment was aimed primarily at curbing law enforcement abuses. Americans of the founding period associated such abuse with "writs of assistance" issued to revenue officers empowering them to search suspected places for smuggled goods, and "general warrants" issued by the British Secretary of State for searching private houses for the discovery of books and papers that might be used to convict the owner of libel. [29] Although the Fourth Amendment has been interpreted to apply to governmental actions other than criminal law enforcement, the central concerns of the Amendment -- and especially of the Warrant Clause -- are focused on police activity. "The standard of probable cause is peculiarly related to criminal investigations... ." South Dakota v. Opperman, 428 U.S. 364, 370 n.5 (1976); see also United States v. Butenko, 494 F.2d 593, 606 (3rd Cir.) (probable cause requirement "most often" relates to police officer's belief that criminal activity has or will take place, and may be modified "when the governmental interest compels an intrusion based on something other than a reasonable belief of criminal activity," such as need to acquire foreign intelligence information), cert. denied, 419 U.S. 881 (1974). Recognizing that the Fourth Amendment may apply differently outside the core context of criminal investigations, the Court has said that "'when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable,"' the Fourth Amendment will not be held to impose that requirement. Vernonia School Dist. 47J, 515 U.S. at 653 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)); see also Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (declining to "suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes," but stating that "the Fourth Amendment would almost certainly permit an appropriately tailored roadblock [at a law enforcement checkpoint] set up to thwart an imminent terrorist attack").
In our view, however well suited the warrant and probable cause requirements may be as applied to criminal investigations or to other law enforcement activities, they are unsuited to the demands of wartime and the military necessity to successfully prosecute a war against an enemy. In the circumstances created by the September 11 attacks, the Constitution provides the Government with expanded powers to prosecute the war effort. The Supreme Court has held that when hostilities prevail, the Government "may summarily requisition property immediately needed for the prosecution of the war... As a measure of public protection the property of alien enemies may be seized, and property believed to be owned by enemies taken without prior determination of its true ownership. Even the personal liberty of the citizen may be temporarily restrained as a measure of public safety." Yakus v. United States, 321 U.S. 414, 443 (1944) (citations omitted). "[I]n times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous." United States v. Salerno, 481 U.S. 739, 748 (1987); see also id. at 768 (Stevens, J., dissenting) ("[I]t is indeed difficult to accept the proposition that the Government is without power to detain a person when it is a virtual certainty that he or she would otherwise kill a group of innocent people in the immediate future."). Thus, in Moyer v. Peabody, 212 U.S. 78 (1909), the Court rejected a due process claim by an individual jailed for two and a half months without probable cause by the State Governor in time of insurrection. As Justice Holmes wrote, "[w]hen it comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment." Id. at 85. Thus, the Supreme Court has recognized that the Government's compelling interests in wartime justify restrictions on the scope of individual liberty.
First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully. "'When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' ... No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops." Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931) (citation omitted); cf. Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (recognizing that "[t]he Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service"). Accordingly, our analysis must be informed by the principle that "while the constitutional structure and controls of our Government are our guides equally in war and in peace, they must be read with the realistic purposes of the entire instrument fully in mind." Lichter, 334 U.S. at 782; see also United States v. Verdugo-Urquidez, 494 U.S. 259, 277 (1990) (Kennedy, J., concurring) ("[W]e must interpret constitutional protections in light of the undoubted power of the United States to take actions to assert its legitimate power and authority abroad."); McCall v. McDowell, 15 F. Cas. 1235, 1243 (C.C.D. Cal. 1867) (No. 8,673) (The Constitution is "a practical scheme of government, having all necessary power to maintain its existence and authority during peace and war, rebellion or invasion").
The current campaign against terrorism may require even broader exercises of federal power domestically. Terrorists operate within the continental United States itself, and escape detection by concealing themselves within the domestic society and economy. While, no doubt, these terrorists pose a direct military threat to the national security, their methods of infiltration and their surprise attacks on civilian and governmental facilities make it difficult to identify any front line. Unfortunately, the terrorist attacks of September 11 have created a situation in which the battlefield has occurred, and may occur, at dispersed locations and intervals within the American homeland itself. As a result, efforts to fight terrorism may require not only the usual wartime regulations of domestic affairs, but also military actions that have normally occurred abroad.
B.
In light of the well-settled understanding that constitutional constraints must give way in some respects to the exigencies of war, we think that the better view is that the Fourth Amendment does not apply to domestic military operations designed to deter and prevent further terrorist attacks. First, it is clear that the Fourth Amendment has never been applied to military operations overseas. In Verdugo-Urquidez, the Supreme Court reversed the court of appeals' holding that the Fourth Amendment applied extraterritorially to a law enforcement operation. The Court pointed out the untenable consequences of such a holding for our Government's military operations abroad:
494 U.S. at 273-74 (citations omitted). Here, the Court demonstrated its practical concern that the Fourth Amendment not be interpreted and applied to military and foreign policy operations abroad. If things were otherwise, both political leaders and military commanders would be severely constrained if they were required to assess the "reasonableness" of any military operation beforehand, and the effectiveness of our forces would be drastically impaired. To apply the Fourth Amendment to overseas military operations would represent an extreme over-judicialization of warfare that would interfere with military effectiveness and the President's constitutional duty to prosecute a war successfully.
It also seems clear that the Fourth Amendment would not restrict military operations within the United States against an invasion or rebellion. [30] Were the mainland of the United States invaded by foreign military forces, for example, our armed forces must repel them. Allowing the Fourth Amendment, in general, to constrain their efforts would interfere with the Government's higher constitutional duty of preserving the nation and defending its citizens. Our forces must be free to "seize" enemy personnel or "search" enemy quarters, papers and messages without having to show "probable cause" before a neutral magistrate, and even without having to demonstrate that their actions were constitutionally "reasonable." They must be free to use any means necessary to defeat the enemy's forces, even if their efforts might cause collateral damage to United States persons. Although their conduct might be governed by the laws of war, including laws for the protection of noncombatants, the Fourth Amendment would no more apply than if those operations occurred in a foreign theater of war. Indeed, we have been unable to find any case from the War of 1812 -- the last major conflict fought out on American soil against a foreign enemy -- in which plaintiffs brought a successful wrongful death action due to federal military operations within the continental United States. [31]
Nor is it necessary that the military forces on our soil be foreign. Suppose that an armed and violent group of United States citizens seized control of a part of the country or of one of the territories, and declared itself independent, as occurred during the Civil War. Federal Armed Forces must be free to use force to put down this insurrection without being constrained by the Fourth Amendment, even though force would be intentionally directed against persons known to be citizens. This appears to have been the understanding that prevailed during the Civil War. We have been unable to find any Civil War examples in which plaintiffs successfully brought wrongful death actions arising from federal military operations. [32] Although the terrorists who staged the September 11 incidents operate clandestinely and have not occupied part of our territory, they bear a strong resemblance to foreign invaders or domestic rebels. They have come from abroad to launch coordinated attacks of great destructive force, within the territorial United States, that are designed to change the policies of the Federal Government. If the President concludes that it is necessary to use military force domestically to counter them, the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection. [33]
Practice under the early Republic supports this conclusion. In 1798, Congress authorized President Adams to "instruct the commanders of the public armed vessels which are, or which shall be employed in the service of the United States, to subdue, seize and take any armed French vessel, which shall be found within the jurisdictional limits of the United States, or elsewhere, on the high seas." An Act Further to Protect the Commerce of the United States, § 1, 1 Stat. 578 (1798). Under this and a companion statute, "scores of seizures of foreign vessels [took place] under congressional authority." Verdugo-Urquidez, 494 U.S. at 267. Although some of the seizures were litigated, "it was never suggested that the Fourth Amendment restrained the authority of Congress or of the United States agents to conduct operations such as this." Id. at 268. The 1798 Act authorized the U.S. Navy to seize vessels of a hostile State -- albeit a State against which we had not declared war -- if they were found "within the jurisdictional limits of the United States," as well as in international waters. Thus, within the first decade of the Constitution's ratification, the Fourth Amendment was not understood to restrict military operations against the nation's enemies purely because those operations were conducted within the United States. On the contrary, seizures within the territorial sea of the United States were no more subject to the Fourth Amendment than seizures in international waters. The fact that the military operations in contemplation here may take place on American soil rather than abroad, therefore, does not compel a distinction of constitutional dimensions.
The view that the Fourth Amendment does not apply to domestic military operations against terrorists makes eminent sense. Consider, for example, a case in which a military commander, authorized to use force domestically, received information that, although credible, did not amount to probable cause, that a terrorist group had concealed a weapon of mass destruction in an apartment building. In order to prevent a disaster in which hundreds or thousands of lives would be lost, the commander should be able to immediately seize and secure the entire building, evacuate and search the premises, and detain, search, and interrogate everyone found inside. If done by the police for ordinary law enforcement purposes, such actions most likely would be held to violate the Fourth Amendment. See Ybarra v. Illinois, 444 U.S. 85 (1979) (Fourth Amendment violated by evidence search of all persons who are found on compact premises subject to search warrant, even when police have a reasonable belief that such persons are connected with drug trafficking and may be concealing contraband). To subject the military to the warrant and probable cause requirement that the courts impose on the police would make essential military operations such as this utterly impossible. If the military are to protect public interests of the highest order, the officer on the scene must be able to "exercise unquestioned command of the situation." Michigan v. Summers, 452 U.S. 692, 703 (1981). [34]
Further support for our position comes from Scheuer v. Rhodes, 416 U.S. 232 (1974). In that case, the Court clearly recognized that the "probable cause" requirement could not be imposed on high ranking executive officials ordering military actions to be taken in situations of civil disorder. Scheuer was an action under 42 U.S.C. § 1983 against the Governor of Ohio and other State officials, alleging that they had recklessly deployed the Ohio National Guard onto the campus of a State university and had ordered the Guard to perform illegal acts resulting in the deaths of several students. Although it denied that the Governor's executive immunity was absolute, the Court did emphasize the difference, for the Fourth Amendment and official immunity analysis, between decisions taken at that level of executive authority and at the police level:
Id. at 245-47 (citation omitted); cf. Katz v. United States. 389 U.S. 347, 364 (1967) (White, J., concurring) ("We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.").
State and federal court decisions reviewing the deployment of military force domestically by State Governors to quell civil disorder and to protect the public from violent attack have repeatedly noted that the constitutional protections of the Bill of Rights do not apply to military operations in the same way that they apply to peacetime law enforcement activities. Thus, the courts have explained that "[w]ar has exigencies that cannot readily be enumerated or described, which may render it necessary for a commanding officer to subject loyal citizens, or persons who though believed to be disloyal have not acted overtly against the government, to deprivations that would under ordinary circumstances be illegal." Commonwealth ex rel. Wadsworth v. Shortall, 55 A. 952, 955 (Pa. 1903) (holding that in time of domestic disorder the shooting by a sentry of an approaching man who would not halt was not illegal). "[W]hatever force is requisite for the defense of the community or of individuals is also lawful. The principle runs through civil life, and has a twofold application in war -- externally against the enemy, and internally as a justification for acts that are necessary for the common defense, however subversive they may be of rights which in the ordinary course of events are inviolable." Hatfield, 81 S.E. at 537 (internal quotations omitted) (upholding the Governor's seizure of a newspaper printing press during a time of domestic insurrection). [35]
C.
Our view that the Fourth Amendment does not apply to domestic military operations receives support from federal court cases involving the destruction of property. In a line of cases arising from several wars, the federal courts have upheld the authority of the Government, acting under the imperative military necessity, to destroy property even when it belongs to United States citizens and even when the action occurs on American soil. Such destruction of property might constitute a seizure under the Fourth Amendment. Moreover, the courts have held, even if such seizures might otherwise constitute "takings" under the Fifth Amendment, the exigent circumstances in which they occurred absolve the Government from liability. The cases articulate a general rule that "the government cannot be charged for injuries to, or destruction of, private property caused by military operations of armies in the field." United States v. Pacific R.R. Co., 120 U.S. 227, 239 (1887). [36] Although these decisions arise under the Fifth Amendment rather than the Fourth, we think that they illuminate the Government's ability to "search" and "seize" even innocent United States persons and their property for reasons of overriding military necessity. For if wartime necessity justifies the Government's decision to destroy property, it certainly must also permit the Government to temporarily search and seize it.
In United States v. Caltex, Inc. (Philippines), 344 U.S. 149 (1952), plaintiffs had owned oil facilities in the Philippine Islands (then a United States territory) at the time of the Japanese attack on Pearl Harbor. In the face of a rapidly deteriorating military situation in the western Pacific, United States military authorities ordered the destruction of those facilities. On December 31, 1941, while Japanese troops were entering Manila, Army personnel demolished the facilities. "All unused petroleum products were destroyed, and the facilities rendered useless to the enemy. The enemy was deprived of a valuable logistic weapon." Id. at 151. Although the Government voluntarily paid compensation for certain losses after the war, it refused to pay for the destruction of the terminal facilities. Quoting its earlier decision in Pacific R.R. Co., 120 U.S. at 234, the Court denied compensation under the Fifth Amendment:
Caltex, 344 U.S. at 153-54. The Court further observed that the "principles expressed" in Pacific R.R. Co. were
Id. at 154. The Court summed up its conclusion:
Id. at 155-56.37 Likewise, in Juragua Iron Co. v. United States, 212 U.S. 297 (1909), the court held that the United States owed no compensation to a United States corporation for the destruction of its property in a province of Cuba during the Spanish-American War. In that case, United States troops were endangered by the prevalence of yellow fever, and the military commander found it necessary to destroy all facilities, including the plaintiff's, which might contain fever germs. [38] Further, even after a Cuban city had capitulated and was under the control of United States forces during the Spanish-American War, the area was still considered "enemy's country," and property belonging to its residents, even if they were United States nationals, was held liable to uncompensated seizure, confiscation or destruction for military needs. See Herrera v. United States, 222 U.S. 558, 569 (1912).
The PCA "was originally a section inserted into an Army Appropriation Act as a backwash of the Reconstruction period following the Civil War. Its legislative history indicates that the immediate objective of the legislation was to put an end to the use of federal troops to police state elections in the ex-Confederate states where the civil power had been reestablished." Chandler v. United States, 171 F.2d 921, 936 (1st Cir. 1948) (Magruder, J.), cert. denied, 336 U.S. 918 (1949); see generally Charles Doyle, Congressional Research Service Report for Congress: The Posse Comitatus Act & Related Matters: The Use of the Military to Execute Civilian Law 9-11 (June 1, 2000). Before the PCA was enacted, Attorney General Cushing had opined that under the Judiciary Act of 1789, a federal marshal, like a sheriff, had the authority to raise a posse comitatus "to aid [him] in the execution of his duty." Extradition of Fugitives from Service, 6 Op. Att'y Gen. 466, 472-73 (1854). A posse comitatus, which included everyone in a district more than fifteen years old, could include "the military of all denominations, militia, soldiers, marines, all of whom are alike bound to obey the commands of a sheriff or marshal. The fact that they are organized as military bodies, under the immediate command of their own officers, does not in any wise affect their legal character." Id. at 473. See also Employment of the Military as a Posse, 16 Op. Att'y Gen. 162, 163 (1878) ("It has been the practice of the Government since its organization ... to permit the military forces of the United States to be used in subordination to the marshal of the United States when it was deemed necessary that he should have their aid in order to the enforcement of his process."). The PCA rejected these opinions and practices and barred the use of the military domestically "as a posse comitatus or otherwise to execute the laws," 18 U.S.C. § 1385 (emphasis added). [22]
Both the express language of the PCA and its history show clearly that it was intended to prevent the use of the military for domestic law enforcement purposes. It does not address the deployment of troops for domestic military operations against potential attacks on the United States. Both the Justice Department and the Defense Department have accordingly interpreted the PCA not to bar military deployments that pursue a military or foreign policy function. In Application of the Posse Comitatus Act to Assistance to the United States National Central Bureau, 13 Op. O.L.C. 195 (1989), our Office cited and agreed with a Department of Defense regulation that interpreted the PCA not to bar military actions undertaken primarily for a military purpose. We said (id. at 197):
[T]he regulations provide that actions taken for the primary purpose of furthering a military or foreign affairs function of the United States are permitted. 32 C.F.R. § 213.10(a)(2)(i). We agree that the Posse Comitatus Act does not prohibit military involvement in actions that are primarily military or foreign affairs related, even if they have an incidental effect on law enforcement, provided that such actions are not undertaken for the purpose of executing the laws. [23]
Because using military force to combat terrorist attacks would be for the purpose of protecting the nation's security, rather than executing the laws, domestic deployment in the current situation would not violate the PCA.
Central to our conclusion that the PCA does not apply is the distinction between "military" and "law enforcement" purpose. To be sure, distinguishing between the two functions is no easy matter. This is not only for the general reason that "the President has discretionary responsibilities in a broad variety of areas, many of them sensitive. In many cases it would be difficult to determine which of the President's innumerable 'functions' encompassed a particular action." Nixon v. Fitzgerald, 457 U.S. at 756. It is also because, in the conflict against terrorism, national security and law enforcement activities, objectives and interests may inevitably overlap.
For example, the September 11 attacks were both acts of war and crimes under United States law. Future terrorist incidents could continue to have both aspects. If the President were to deploy the Armed Forces within the United States in order to engage in counter-terrorism operations, their actions could resemble, overlap with, and assist ordinary law enforcement activity. Military action might encompass making arrests, seizing documents or other property, searching persons or places or keeping them under surveillance, intercepting electronic or wireless communications, setting up roadblocks, interviewing witnesses, and searching for suspects. Moreover, the information gathered in such efforts could be of considerable use to federal prosecutors if the Government were to prosecute against captured terrorists.
In attempting to explain a distinction between these two executive functions, we would normally rely on judicial decisions and administrative precedents. In the present circumstances, however, few if any precedents exist. There have been rare occasions in recent decades in which Presidents have deployed the military within the United States, pursuant to constitutional or statutory authority or both, in order to address grave threats to civil order. Thus, in Alabama in 1963, in Mississippi in 1962, and in Arkansas in 1957, Presidents deployed troops within the United States to meet threats of mass, violent resistance to efforts to end racial segregation. See President's Power to Use Federal Troops to Suppress Resistance to Enforcement of Federal Court Orders -- Little Rock, Arkansas, 41 Op. Att'y Gen. 313, 326-29 (1957) (advising the President that he had both constitutional authority and authority under 10 U.S.C. §§ 332 & 333 to deploy troops in Little Rock, Arkansas). Again, in 1967, the President, pursuant to 10 U.S.C. § 331, "ordered federal troops to assist local authorities at the time of the civil disorders in Detroit, Michigan, in the summer of 1967 and during the disturbances that followed the assassination of Dr. Martin Luther King." Laird v. Tatum, 408 U.S. 1, 4-5 (1972); see also id. at 3 n.2 (quoting Attorney General's letter to State Governors outlining prerequisites for Presidential invocation of § 331). But these episodes did not produce judicial decisions of significant help here. See, e.g., Alabama v. United States, 373 U.S. 545 (1963) (per curiam). Factually as well as legally, moreover, those deployments were markedly different from those envisaged here.
Yet we are not wholly without useful precedents. We have recently reviewed proposed amendments to the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801-11 (1994 & West Supp. 2000) (the "FISA"). See Memorandum for David S. Kris, Associate Deputy Attorney General, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the "Purpose" Standard for Searches (Sept. 25, 2001). As we explained, FISA arose out of a background in which the Supreme Court had declined to rule on the President's constitutional authority to order warrantless electronic surveillance of foreign powers and their agents within the United States. See United States v. United States District Court, 407 U.S. 297, 308 (1972); Katz v. United States, 389 U.S. 347, 358 n.23 (1967). Lower courts, however, have held that due to the President's constitutional superiority in foreign affairs, and the unsuitability of foreign affairs questions for judicial resolution, he could engage in warrantless searches of foreign powers or their agents for national security purposes. See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908, 913, 915 (4th Cir. 1980) United States v. Butenko, 494 F.2d 593 (en banc), cert. denied, 419 U.S. 881(1974); United States v. Brown, 484 F.2d 418 (1973), cert. denied, 415 U.S. 960 (1974).
Enacted in 1978, FISA created a special procedure by which the Government may obtain warrants for foreign intelligence work on the basis of judicial review of an application for such a warrant that had been approved by the Attorney General. In support of such an application, the Government is required to certify, among other things, that "the purpose" of the proposed search or surveillance is "to obtain foreign intelligence information," 50 U.S.C. § 1804 (a)(7)(B). In reviewing the application, therefore, the FISA courts have been required to consider whether "the government is primarily attempting to form the basis for a criminal prosecution," Truong Dinh Hung, 629 F.2d at 915, or is indeed acting for the purpose of obtaining foreign intelligence. Distinguishing between "law enforcement" and "foreign intelligence" seems, if anything, more difficult than distinguishing between "law enforcement" and "military" functions. Yet the FISA courts seem to have found little difficulty in applying the statute's "purpose" test. [24] This, we believe, reflects the care and circumspection with which the executive branch itself reviews and prepares FISA applications, and the courts' justified confidence in the executive branch's self-monitoring. Likewise here, we believe that the courts will defer to the executive branch's representations that the deployment of the Armed Forces furthers military purposes, if the executive institutes and follows careful controls.
We believe that the Department of Defense could take steps to make clear that a deployment of troops is for a military, rather than a law enforcement, purpose. The object of such steps would be to emphasize that a specific military operation is intended to counter a terrorist attack, thus furthering a national security purpose, rather than to apprehend suspects or to secure evidence for a criminal prosecution. Any criteria or procedures for distinguishing domestic counter-terrorist military operations from operations involving the Armed Forces that have primarily a law enforcement character would, of course, have to be framed, interpreted and applied in a manner that would not inhibit military effectiveness. Furthermore, domestic uses of the Armed Forces for military purposes in counter-terrorist actions may also promote the goals of the anti-terrorism portions of the U.S. criminal code. It also bears emphasizing again that it rests within the President's discretion to determine when certain circumstances -- such as the probability that a terrorist attack will succeed, the number of lives at risk, the available window of opportunity to stop the terrorists, and the other exigencies of the moment -- justify using the military to intervene. In this memorandum, we shall not recommend particular tests or procedures for consideration by the Secretary of Defense. We will be pleased to work with the Department of Defense and with other interested departments and agencies in devising an appropriate list of factors to be considered in establishing whether there is a military purpose for a domestic use of the Armed Forces in a counter-terrorist action.
B.
Even if the PCA were generally held to apply to the use of the military domestically in an anti-terrorism role, the statute still would not bar such a deployment. The PCA includes both a constitutional and a statutory exception: it excludes military actions taken "in cases and under circumstances expressly authorized by the Constitution or Act of Congress." Both of these exceptions apply to the use of the Armed Forces in response to the September 11 attacks.
In light of Part II's review of the President's inherent powers, it should be clear that the PCA's constitutional exception has been triggered. According to one interpretation of the PCA's legislative history, "the debates ... reveal that the exception for the Constitution represented a compromise designed to enable the bill to pass, rather than a Congressional recognition of specific Presidential authority under the Constitution." O'Shaughnessy, supra n.22, at 712. Whether Congress in 1878 recognized the President's constitutional authority is, however, not critical. By its own terms, the PCA excludes from its coverage any use of the military for constitutional purposes. As Attorney General Brownell noted in reviewing the PCA's legislative history, "[t]here are in any event grave doubts as to the authority of the Congress to limit the constitutional powers of the President to enforce the laws and preserve the peace under circumstances which he deems appropriate." President's Power to Use Federal Troops to Suppress Resistance to Enforcement of Federal Court Orders - Little Rock, Arkansas, 41 Op. Att'y Gen. 313, 331 (1957). Thus, the dispositive question is whether the President is deploying troops pursuant to a plenary constitutional authority. Here, as we have shown earlier, that is clearly the case. The President would be deploying the military pursuant to his powers as Chief Executive and Commander in Chief in response to a direct attack on the United States. Thus, the PCA by its own terms does not apply to the domestic use of the military in a counter-terrorism role.
Even if the PCA's constitutional exception were not triggered, two statutes, Pub. L. No. 107-40 and 10 U.S.C. § 333 (2000) would allow the President to avoid application of the PCA; [25] First, as we have discussed, Pub. L. No. 107-40 authorizes "the use of United States Armed Forces against those responsible for the recent attacks launched against the United States." This authorization does not distinguish between deployment of the military either at home or abroad, nor does it make any distinction between use of the Armed Force for law enforcement or for military purposes. Rather, it simply authorizes the use of force against terrorists linked to the September 11 attacks. Thus, Pub. L. No. 107-40 provides the statutory authorization envisioned by the PCA's drafters to allow the use of the military domestically, whether for law enforcement purposes or not.
Second, 10 U.S.C. § 333 provides another statutory exception to the PCA. That provision reads:
The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it --
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. [26]
Attorneys General have consistently read this statute as authorizing the domestic use of the military. Interpreting a companion statute, now codified as 10 U.S.C. § 332 (2000), Attorney General Brewster opined that it "expressly authorized [the President] to employ the military forces of the United States to aid in enforcing the laws" upon the determination that such enforcement was being obstructed and resisted by "powerful combinations of outlaws and criminals." Suppression of Lawlessness in Arizona, 17 Op. Att'y Gen. 333, 334-35 (1882). Accordingly, he concluded, the exception in the PCA for statutorily authorized uses of the military was triggered. Id. at 335; see also Suppression of Unlawful Organizations in Arizona, 17 Op. Att'y Gen. 242 (1881). During the emergency caused by threats of mass violence in response to the desegregation of the public schools of Little Rock, Arkansas, Attorney General Brownell advised the President that he had the authority, both under the Constitution and under statutes including § 333, "to call the National Guard into service and to use those forces, together with such of the Armed Forces as you considered necessary, to suppress the domestic violence, obstruction and resistance of law then and there existing." President's Power to Use Federal Troops to Suppress Resistance to Enforcement of Federal Court Orders - Little Rock, Arkansas, 41 Op. Att'y Gen. at 326. If invoked, [27] the Attorney General advised, this statute would obviate the application of the PCA. More recently, the Office of Legal Counsel advised that President George H. W. Bush could deploy federal troops in Los Angeles in 1992 to suppress mass violence and to restore law and order there under his authority under chapter 15 of Title 10.
We think it plain that the President could find that the present circumstances justify the invocation of § 333. Here, an unlawful terrorist group has hijacked civilian airliners and used them to kill thousands of civilians by crashing them into the World Trade Center and the Pentagon. These terrorists have engaged in "domestic violence" within the states of New York and Virginia and have violated numerous federal laws. See, e.g., 49 U.S.C. § 46502 (1994 & Supp. V 1999) (Aircraft Piracy); 18 U.S.C. § 32 (1994 & Supp. V 1999) (Aircraft Sabotage); 18 U.S.C. § 1111 (1994) (Murder Within the Special Territorial Jurisdiction of the United States); 18 U.S.C. § 1114 (Supp. V 1999) (Murder of Federal Employees); 18 U.S.C. § 844(i) (Supp. V 1999) (Malicious Damage or Destruction by Means of Fire or Explosive of Any Building Used in Interstate or Foreign Commerce); 18 U.S.C. § 844(f) (Supp. V 1999) (Malicious Damage or Destruction By Means of Fire or Explosive to Any Building Owned or Possessed by the United States); 18 U.S.C. § 2332b (Supp. V 1999) (Terrorist Acts Transcending National Boundaries); 18 U.S.C. § 1962 (1994) (RICO). The Al Qaeda group apparently has also threatened to attack airports and public gatherings, and has studied the use of biological or chemical warfare against the United States. Section 333 provides the President with the statutory authority to use the military to respond to such coordinated, violent terrorist attacks within the continental United States. Thus, even if military deployment here were to be considered to have a law enforcement, rather than military, character, it would still be authorized by federal law. As a result, action under that statutory authority would also obviate application of the PCA.
Summary. We conclude that the PCA would not apply to the use of the Armed Forces by the President domestically to deter and prevent terrorist acts within the United States. Use of the Armed Forces would promote a military, rather than a law enforcement, purpose. In any event, the proposed Presidential deployments are exempt from the PCA, because the President has both constitutional and statutory authorization to use military forces in the present context.
V.
Having concluded that the President has the legal and constitutional authority to use military force within the United States to respond to and combat future acts of terrorism, and that the Posse Comitatus Act does not bar deployment, we turn to the Fourth Amendment. The Fourth Amendment states that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV.
A.
The Fourth Amendment requires that police searches and seizures not be "unreasonable." If such an intrusion qualifies as a full "search" or "seizure" (rather than, say, an investigative police "stop"), the Supreme Court has held that it must ordinarily be based upon "probable cause." See, e.g., Dunaway v. New York, 442 U.S. 200, 212 (1979) (affirming "the general principle that Fourth Amendment seizures must be supported by the 'long-prevailing standards' of probable cause"). In addition to requiring probable cause in order to demonstrate reasonableness, the Court has concluded that in the normal law enforcement context the Government generally must obtain a warrant before conducting a search. [28] Nonetheless, the Court has recognized several areas in which warrantless searches will be considered reasonable under the Fourth Amendment. See, e.g., Pennsylvania v. Labron, 518 U.S. 938 (1996) (per curiam) (certain automobile searches); Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) (drug testing of high school athletes); Michigan Dept of State Police v. Sitz, 496 U.S. 444 (1990) (drunk driver checkpoints); Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 (1989) (drug testing of railroad personnel); National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (random drug testing of federal customs officers); United States v. Place, 462 U.S. 696 (1983) (temporary seizure of baggage); Michigan v. Summers, 452 U.S. 692 (1981) (detention to prevent flight and to protect law enforcement officers); Terry v. Ohio, 392 U.S. 1 (1968) (temporary stop and limited search for weapons).
In the normal domestic law enforcement context, the use of deadly force is considered a "seizure" under the Fourth Amendment. The Supreme Court has examined the constitutionality of the use of deadly force under an objective "reasonableness" standard. See Tennessee v. Garner, 471 U.S. 1, 7, 11 (1985). The question whether a particular use of deadly force is "reasonable" requires an assessment of "the totality of the circumstances" that balances "'the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion."' Id. at 8-9 (quoting United States v. Place, 462 U.S. 696, 703 (1983)). Because "[t]he intrusiveness of a seizure by means of deadly force is unmatched," id. at 9, the governmental interests in using such force must be powerful. Deadly force, however, may be justified if the danger to the officer's or an innocent third party's life or safety is sufficiently great. See Memorandum to Files, from Robert Delahunty, Special Counsel, Office of Legal Counsel, Re: Use of Deadly Force Against Civil Aircraft Threatening to Attack 1996 Summer Olympic Games (Aug. 19, 1996).
As a matter of the original understanding, the Fourth Amendment was aimed primarily at curbing law enforcement abuses. Americans of the founding period associated such abuse with "writs of assistance" issued to revenue officers empowering them to search suspected places for smuggled goods, and "general warrants" issued by the British Secretary of State for searching private houses for the discovery of books and papers that might be used to convict the owner of libel. [29] Although the Fourth Amendment has been interpreted to apply to governmental actions other than criminal law enforcement, the central concerns of the Amendment -- and especially of the Warrant Clause -- are focused on police activity. "The standard of probable cause is peculiarly related to criminal investigations... ." South Dakota v. Opperman, 428 U.S. 364, 370 n.5 (1976); see also United States v. Butenko, 494 F.2d 593, 606 (3rd Cir.) (probable cause requirement "most often" relates to police officer's belief that criminal activity has or will take place, and may be modified "when the governmental interest compels an intrusion based on something other than a reasonable belief of criminal activity," such as need to acquire foreign intelligence information), cert. denied, 419 U.S. 881 (1974). Recognizing that the Fourth Amendment may apply differently outside the core context of criminal investigations, the Court has said that "'when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable,"' the Fourth Amendment will not be held to impose that requirement. Vernonia School Dist. 47J, 515 U.S. at 653 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)); see also Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (declining to "suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes," but stating that "the Fourth Amendment would almost certainly permit an appropriately tailored roadblock [at a law enforcement checkpoint] set up to thwart an imminent terrorist attack").
In our view, however well suited the warrant and probable cause requirements may be as applied to criminal investigations or to other law enforcement activities, they are unsuited to the demands of wartime and the military necessity to successfully prosecute a war against an enemy. In the circumstances created by the September 11 attacks, the Constitution provides the Government with expanded powers to prosecute the war effort. The Supreme Court has held that when hostilities prevail, the Government "may summarily requisition property immediately needed for the prosecution of the war... As a measure of public protection the property of alien enemies may be seized, and property believed to be owned by enemies taken without prior determination of its true ownership. Even the personal liberty of the citizen may be temporarily restrained as a measure of public safety." Yakus v. United States, 321 U.S. 414, 443 (1944) (citations omitted). "[I]n times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous." United States v. Salerno, 481 U.S. 739, 748 (1987); see also id. at 768 (Stevens, J., dissenting) ("[I]t is indeed difficult to accept the proposition that the Government is without power to detain a person when it is a virtual certainty that he or she would otherwise kill a group of innocent people in the immediate future."). Thus, in Moyer v. Peabody, 212 U.S. 78 (1909), the Court rejected a due process claim by an individual jailed for two and a half months without probable cause by the State Governor in time of insurrection. As Justice Holmes wrote, "[w]hen it comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment." Id. at 85. Thus, the Supreme Court has recognized that the Government's compelling interests in wartime justify restrictions on the scope of individual liberty.
First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully. "'When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' ... No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops." Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931) (citation omitted); cf. Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (recognizing that "[t]he Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service"). Accordingly, our analysis must be informed by the principle that "while the constitutional structure and controls of our Government are our guides equally in war and in peace, they must be read with the realistic purposes of the entire instrument fully in mind." Lichter, 334 U.S. at 782; see also United States v. Verdugo-Urquidez, 494 U.S. 259, 277 (1990) (Kennedy, J., concurring) ("[W]e must interpret constitutional protections in light of the undoubted power of the United States to take actions to assert its legitimate power and authority abroad."); McCall v. McDowell, 15 F. Cas. 1235, 1243 (C.C.D. Cal. 1867) (No. 8,673) (The Constitution is "a practical scheme of government, having all necessary power to maintain its existence and authority during peace and war, rebellion or invasion").
The current campaign against terrorism may require even broader exercises of federal power domestically. Terrorists operate within the continental United States itself, and escape detection by concealing themselves within the domestic society and economy. While, no doubt, these terrorists pose a direct military threat to the national security, their methods of infiltration and their surprise attacks on civilian and governmental facilities make it difficult to identify any front line. Unfortunately, the terrorist attacks of September 11 have created a situation in which the battlefield has occurred, and may occur, at dispersed locations and intervals within the American homeland itself. As a result, efforts to fight terrorism may require not only the usual wartime regulations of domestic affairs, but also military actions that have normally occurred abroad.
B.
In light of the well-settled understanding that constitutional constraints must give way in some respects to the exigencies of war, we think that the better view is that the Fourth Amendment does not apply to domestic military operations designed to deter and prevent further terrorist attacks. First, it is clear that the Fourth Amendment has never been applied to military operations overseas. In Verdugo-Urquidez, the Supreme Court reversed the court of appeals' holding that the Fourth Amendment applied extraterritorially to a law enforcement operation. The Court pointed out the untenable consequences of such a holding for our Government's military operations abroad:
The rule adopted by the Court of Appeals would apply not only to law enforcement operations abroad, but also to other foreign policy operations which might result in "searches or seizures." The United States frequently employs Armed Forces outside this country -- over 200 times in our history -- for the protection of American citizens or national security. Application of the Fourth Amendment to those circumstances could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest. Were respondent to prevail, aliens with no attachment to this country might well bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters. . . [T]he Court of Appeals' global view of [the Fourth Amendment's] applicability would plunge [the political branches] into a sea of uncertainty as to what might be reasonable in the way of searches and seizures conducted abroad.
494 U.S. at 273-74 (citations omitted). Here, the Court demonstrated its practical concern that the Fourth Amendment not be interpreted and applied to military and foreign policy operations abroad. If things were otherwise, both political leaders and military commanders would be severely constrained if they were required to assess the "reasonableness" of any military operation beforehand, and the effectiveness of our forces would be drastically impaired. To apply the Fourth Amendment to overseas military operations would represent an extreme over-judicialization of warfare that would interfere with military effectiveness and the President's constitutional duty to prosecute a war successfully.
It also seems clear that the Fourth Amendment would not restrict military operations within the United States against an invasion or rebellion. [30] Were the mainland of the United States invaded by foreign military forces, for example, our armed forces must repel them. Allowing the Fourth Amendment, in general, to constrain their efforts would interfere with the Government's higher constitutional duty of preserving the nation and defending its citizens. Our forces must be free to "seize" enemy personnel or "search" enemy quarters, papers and messages without having to show "probable cause" before a neutral magistrate, and even without having to demonstrate that their actions were constitutionally "reasonable." They must be free to use any means necessary to defeat the enemy's forces, even if their efforts might cause collateral damage to United States persons. Although their conduct might be governed by the laws of war, including laws for the protection of noncombatants, the Fourth Amendment would no more apply than if those operations occurred in a foreign theater of war. Indeed, we have been unable to find any case from the War of 1812 -- the last major conflict fought out on American soil against a foreign enemy -- in which plaintiffs brought a successful wrongful death action due to federal military operations within the continental United States. [31]
Nor is it necessary that the military forces on our soil be foreign. Suppose that an armed and violent group of United States citizens seized control of a part of the country or of one of the territories, and declared itself independent, as occurred during the Civil War. Federal Armed Forces must be free to use force to put down this insurrection without being constrained by the Fourth Amendment, even though force would be intentionally directed against persons known to be citizens. This appears to have been the understanding that prevailed during the Civil War. We have been unable to find any Civil War examples in which plaintiffs successfully brought wrongful death actions arising from federal military operations. [32] Although the terrorists who staged the September 11 incidents operate clandestinely and have not occupied part of our territory, they bear a strong resemblance to foreign invaders or domestic rebels. They have come from abroad to launch coordinated attacks of great destructive force, within the territorial United States, that are designed to change the policies of the Federal Government. If the President concludes that it is necessary to use military force domestically to counter them, the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection. [33]
Practice under the early Republic supports this conclusion. In 1798, Congress authorized President Adams to "instruct the commanders of the public armed vessels which are, or which shall be employed in the service of the United States, to subdue, seize and take any armed French vessel, which shall be found within the jurisdictional limits of the United States, or elsewhere, on the high seas." An Act Further to Protect the Commerce of the United States, § 1, 1 Stat. 578 (1798). Under this and a companion statute, "scores of seizures of foreign vessels [took place] under congressional authority." Verdugo-Urquidez, 494 U.S. at 267. Although some of the seizures were litigated, "it was never suggested that the Fourth Amendment restrained the authority of Congress or of the United States agents to conduct operations such as this." Id. at 268. The 1798 Act authorized the U.S. Navy to seize vessels of a hostile State -- albeit a State against which we had not declared war -- if they were found "within the jurisdictional limits of the United States," as well as in international waters. Thus, within the first decade of the Constitution's ratification, the Fourth Amendment was not understood to restrict military operations against the nation's enemies purely because those operations were conducted within the United States. On the contrary, seizures within the territorial sea of the United States were no more subject to the Fourth Amendment than seizures in international waters. The fact that the military operations in contemplation here may take place on American soil rather than abroad, therefore, does not compel a distinction of constitutional dimensions.
The view that the Fourth Amendment does not apply to domestic military operations against terrorists makes eminent sense. Consider, for example, a case in which a military commander, authorized to use force domestically, received information that, although credible, did not amount to probable cause, that a terrorist group had concealed a weapon of mass destruction in an apartment building. In order to prevent a disaster in which hundreds or thousands of lives would be lost, the commander should be able to immediately seize and secure the entire building, evacuate and search the premises, and detain, search, and interrogate everyone found inside. If done by the police for ordinary law enforcement purposes, such actions most likely would be held to violate the Fourth Amendment. See Ybarra v. Illinois, 444 U.S. 85 (1979) (Fourth Amendment violated by evidence search of all persons who are found on compact premises subject to search warrant, even when police have a reasonable belief that such persons are connected with drug trafficking and may be concealing contraband). To subject the military to the warrant and probable cause requirement that the courts impose on the police would make essential military operations such as this utterly impossible. If the military are to protect public interests of the highest order, the officer on the scene must be able to "exercise unquestioned command of the situation." Michigan v. Summers, 452 U.S. 692, 703 (1981). [34]
Further support for our position comes from Scheuer v. Rhodes, 416 U.S. 232 (1974). In that case, the Court clearly recognized that the "probable cause" requirement could not be imposed on high ranking executive officials ordering military actions to be taken in situations of civil disorder. Scheuer was an action under 42 U.S.C. § 1983 against the Governor of Ohio and other State officials, alleging that they had recklessly deployed the Ohio National Guard onto the campus of a State university and had ordered the Guard to perform illegal acts resulting in the deaths of several students. Although it denied that the Governor's executive immunity was absolute, the Court did emphasize the difference, for the Fourth Amendment and official immunity analysis, between decisions taken at that level of executive authority and at the police level:
When a court evaluates police conduct relating to an arrest its guideline is "good faith and probable cause." In the case of higher officers of the executive branch, however, the inquiry is far more complex since the range of decisions and choices ... is virtually infinite. In common with police officers, however, officials with a broad range of duties and authority must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office. Decisions in such situations are more likely than not to arise in an atmosphere of confusion, ambiguity, and swiftly moving events and when, by the very existence of some degree of civil disorder, there is often no consensus as to the appropriate remedy. In short, since the options which a chief executive and his principal subordinates must consider are far broader and far more subtle than those made by officials with less responsibility, the range of discretion must be comparably broad.
Id. at 245-47 (citation omitted); cf. Katz v. United States. 389 U.S. 347, 364 (1967) (White, J., concurring) ("We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.").
State and federal court decisions reviewing the deployment of military force domestically by State Governors to quell civil disorder and to protect the public from violent attack have repeatedly noted that the constitutional protections of the Bill of Rights do not apply to military operations in the same way that they apply to peacetime law enforcement activities. Thus, the courts have explained that "[w]ar has exigencies that cannot readily be enumerated or described, which may render it necessary for a commanding officer to subject loyal citizens, or persons who though believed to be disloyal have not acted overtly against the government, to deprivations that would under ordinary circumstances be illegal." Commonwealth ex rel. Wadsworth v. Shortall, 55 A. 952, 955 (Pa. 1903) (holding that in time of domestic disorder the shooting by a sentry of an approaching man who would not halt was not illegal). "[W]hatever force is requisite for the defense of the community or of individuals is also lawful. The principle runs through civil life, and has a twofold application in war -- externally against the enemy, and internally as a justification for acts that are necessary for the common defense, however subversive they may be of rights which in the ordinary course of events are inviolable." Hatfield, 81 S.E. at 537 (internal quotations omitted) (upholding the Governor's seizure of a newspaper printing press during a time of domestic insurrection). [35]
C.
Our view that the Fourth Amendment does not apply to domestic military operations receives support from federal court cases involving the destruction of property. In a line of cases arising from several wars, the federal courts have upheld the authority of the Government, acting under the imperative military necessity, to destroy property even when it belongs to United States citizens and even when the action occurs on American soil. Such destruction of property might constitute a seizure under the Fourth Amendment. Moreover, the courts have held, even if such seizures might otherwise constitute "takings" under the Fifth Amendment, the exigent circumstances in which they occurred absolve the Government from liability. The cases articulate a general rule that "the government cannot be charged for injuries to, or destruction of, private property caused by military operations of armies in the field." United States v. Pacific R.R. Co., 120 U.S. 227, 239 (1887). [36] Although these decisions arise under the Fifth Amendment rather than the Fourth, we think that they illuminate the Government's ability to "search" and "seize" even innocent United States persons and their property for reasons of overriding military necessity. For if wartime necessity justifies the Government's decision to destroy property, it certainly must also permit the Government to temporarily search and seize it.
In United States v. Caltex, Inc. (Philippines), 344 U.S. 149 (1952), plaintiffs had owned oil facilities in the Philippine Islands (then a United States territory) at the time of the Japanese attack on Pearl Harbor. In the face of a rapidly deteriorating military situation in the western Pacific, United States military authorities ordered the destruction of those facilities. On December 31, 1941, while Japanese troops were entering Manila, Army personnel demolished the facilities. "All unused petroleum products were destroyed, and the facilities rendered useless to the enemy. The enemy was deprived of a valuable logistic weapon." Id. at 151. Although the Government voluntarily paid compensation for certain losses after the war, it refused to pay for the destruction of the terminal facilities. Quoting its earlier decision in Pacific R.R. Co., 120 U.S. at 234, the Court denied compensation under the Fifth Amendment:
The destruction or injury of private property in battle, or in the bombardment of cities and towns, and in many other ways in the war, had to be borne by the sufferers alone, as one of its consequences. Whatever would embarrass or impede the advance of the enemy, as the breaking up of roads, or the burning of bridges, or would cripple and defeat him, as destroying his means of subsistence, were lawfully ordered by the commanding general. Indeed, it was his imperative duty to direct their destruction. The necessities of the war called for and justified this. The safety of the state in such cases overrides all considerations of private loss.
Caltex, 344 U.S. at 153-54. The Court further observed that the "principles expressed" in Pacific R.R. Co. were
neither novel nor startling, for the common law had long recognized that in times of imminent peril -- such as when fire threatened a whole community -- the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of many more could be saved.
Id. at 154. The Court summed up its conclusion:
The short of the matter is that this property, due to the fortunes of war, had become a potential weapon of great significance to the invader. It was destroyed, not appropriated for subsequent use. It was destroyed that the United States might better and sooner destroy the enemy.
The terse language of the Fifth Amendment is no comprehensive promise that the United States will make whole all who suffer from every ravage and burden of war. This Court has long recognized that in wartime many losses must be attributed solely to the fortunes of war, and not to the sovereign.
Id. at 155-56.37 Likewise, in Juragua Iron Co. v. United States, 212 U.S. 297 (1909), the court held that the United States owed no compensation to a United States corporation for the destruction of its property in a province of Cuba during the Spanish-American War. In that case, United States troops were endangered by the prevalence of yellow fever, and the military commander found it necessary to destroy all facilities, including the plaintiff's, which might contain fever germs. [38] Further, even after a Cuban city had capitulated and was under the control of United States forces during the Spanish-American War, the area was still considered "enemy's country," and property belonging to its residents, even if they were United States nationals, was held liable to uncompensated seizure, confiscation or destruction for military needs. See Herrera v. United States, 222 U.S. 558, 569 (1912).
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PART 3 OF 3
In the aftermath of the Civil War, the Supreme Court upheld legislation enacted by Congress and enforced by the President that confiscated the property of "rebels," designated as such. Miller v. United States, 78 U.S. 268 (1870). The plaintiff had argued that the relevant provisions of the legislation were "municipal regulations only," i.e., "merely statutes against crimes," id. at 304, and therefore that the Fifth and Sixth Amendments should have applied. The Court rejected that contention, holding that the provisions "were not enacted under the municipal power of Congress to legislate for the punishment of crimes ... [but were] an exercise of the war powers of the government." Id. at 304-05. "Because "the power to declare war involves the power to prosecute it by all means and in any manner in which war may legitimately be prosecuted... [i]t therefore includes the right to seize and confiscate all property of an enemy and to dispose of it at the will of the captor." Id. at 305. Further, the Court upheld the confiscations despite the United States citizenship of the property owners. "[T]hose must be considered [enemies] who, though subjects or citizens of the lawful government, are residents of the territory under the power or control of the party resisting that government... . Have they not voluntary subjected themselves to that party? And is it not as important to take from them the sinews of war, their property, as it is to confiscate the property of rebel enemies resident within the rebel territory?" Id. at 311-12. Indeed, the Court even suggested that the property of disloyal residents within the Union could also have been confiscated in the same manner. Referring to the experience of the Framing generation during the Revolution, the Court found that the practice of the period showed "the general understanding that aiders and abettors of the public enemy were themselves enemies, and hence that their property might lawfully be confiscated." Id. at 312; see also id. at 311 (those who, though "subjects of a state in amity with the United States, are in the service of a state at war with them" are "public enemies"). Miller establishes that certain basic constitutional rights do not apply to the enemy, and that even United States citizenship may not negate the possibility that one may have the legal status of an enemy. Accord Ex pane Quirin, 317 U.S. 1 (1942). Other Supreme Court decisions from the Civil War are consistent with this outcome. [39]
The doctrine that a commander, acting in circumstances of compelling military necessity, may destroy a citizen's private property without causing the United States to incur an obligation of compensation has deep roots in the law. "In 1776 during the Revolution when private property was destroyed at Charleston in furthering military operations, during the War of 1812 when a plantation near New Orleans was damaged by inundation caused by the cutting of a levee to impede the advance of Packenham, during the Civil War, when a house was destroyed at Paducah, Ky., because its location on the outskirts of town made it a favorable point for an enemy sharpshooter, -- in all these cases the government refused to indemnify the owners... [D]uring the Civil War property vested in cotton was not protected and persons within the limits of the insurrection, whoever they might be, were unable to secure satisfaction because cotton was considered a military article, 'potentially an auxiliary of the enemy' by which he would be able to secure warlike material abroad." Elbridge Colby, War Crimes, 23 Mich. L. Rev. 606, 622-23 (1925) (footnote omitted).
These cases show the Court's consistent recognition that the protections of the Bill of Rights are tempered by the circumstances of war. The lessons of the Court's approach to the wartime application of the Fifth Amendment should apply to the Fourth Amendment, which also involves constitutional rights with respect to property. If the Court has found that wartime destruction of property does not involve a "taking" under the Fifth Amendment, it seems safe to conclude that the Court would not apply the Fourth Amendment to domestic military operations against foreign terrorists. The former involves a great intrusion into an individual's rights -- the complete destruction of property -- than does a temporary search and seizure of property. In any event, both rights would give way before the Government's compelling interest in responding to a direct, devastating attack on the United States, and in prosecuting a war successfully against international terrorists -- whether they are operating abroad or within the United States.
This is not, of course, to say that war suspends constitutional civil liberties. See, e.g., Ex pane Milligan, 71 U.S. (4 Wall.) 2, 124 (1866). But the Court has also found it "'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig, 453 U.S. at 307 (citation omitted), and has interpreted and applied constitutional protections to accommodate that overriding need. Here, we believe that the Constitution, properly interpreted, allows the President as Commander in Chief, and the forces under his control to use military force against foreign enemies who operate on American soil, free from the constraints of the Fourth Amendment.
We emphasize that nothing in this advice precludes the use of information obtained by military actions for criminal investigations or prosecutions, if obtaining it for such use is not a significant purpose of the action. As a general matter, the Fourth Amendment law does not require that a search or seizure have only a single purpose so long as it is otherwise legitimate. Thus, the police may engage in (objectively justified) traffic stops even if their underlying motive may be to investigate other violations as to which no probable cause or even articulable suspicion exists. See Whren v. United States, 517 U.S. 806 (1996); see also United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983) (otherwise valid warrantless boarding of vessel by customs officials not invalidated by facts that State police officer accompanied customs officials and officers were following tip that vessel might be carrying marijuana). In the FISA context, the courts have said that an "otherwise valid FISA surveillance is not tainted simply because the government can anticipate that the fruits of such surveillance may later be used, as allowed by [50 U.S.C.] § 1806(b), as evidence in a criminal trial." Duggan, 743 F.2d at 78. Thus, while the Government's military and law enforcement purposes may overlap, the Government should not be denied the benefits to its law enforcement functions so long as securing such benefits is not the predominant purpose of its military actions.
VI.
We have argued that the Fourth Amendment would not apply to military operations the President ordered within the United States to deter and prevent acts of terrorism. We recognize, however, that courts could decide otherwise, although we believe this would be at odds with the best reading of the constitutional text and history, practice, and the case law. Nonetheless, we analyze the standards that would govern if courts were to subject domestic military operations to the Fourth Amendment.
The Fourth Amendment's "'central requirement' is one of reasonableness." Illinois v. McArthur, 121 S. Ct. 946, 949 (2001) (quoting Texas v. Brown, 460 U.S. 730, 739 (1983)); see also Vernonia School Dist. 47J, 515 U.S. at 652 ("As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is 'reasonableness."'). Even in the context of ordinary law enforcement by the police, the Court has "made it clear that there are exceptions to the warrant requirement. When faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable." McArthur, 121 S. Ct. at 949. "The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it was conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559 (1979). In light of the extraordinary emergency created by the September 11, and taking account also of the compelling need military commanders would no doubt have to act swiftly in particular exigent circumstances, we think that the courts -- if they applied the Fourth Amendment at all - -would find that the challenged military conduct was "reasonable."
It is, of course, not possible to preview the reasonableness analysis for all possible uses of force within the United States. Our Office has, however, previously examined a somewhat similar situation, and the advice we gave at that time is relevant here. In 1996, we were asked whether law enforcement or the armed forces could use deadly force to defend against an aerial attack on the Summer Olympics in Atlanta, Georgia, consistent with the Fourth Amendment. Memorandum to File from Robert Delahunty, Special Counsel, Re: Use of Deadly Force Against Civil Aircraft Threatening to Attack 1996 Summer Olympic Games at 1 (Aug. 19, 1996). We began by noting the destruction of an aircraft would be a "seizure" within the meaning of the Fourth Amendment, and we assumed that the use of deadly force by the law enforcement or military personnel to prevent or repel an imminent aerial attack on the Olympic Games would be subject to the Fourth Amendment. See Garner, 471 U.S. at 7, 11; Graham v. Connor, 490 U.S. 386, 394-95 & n.10 (1989); Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993). Our Office assumed that the Fourth Amendment applied both because we were asked to as part of the hypothetical question, and because the possible use of the aircraft was not considered to be part of a larger military attack upon the United States.
In judging the constitutionality of the use of deadly force, we applied the Supreme Court's balancing test for determining "reasonableness" for Fourth Amendment purposes. Because "[t]he intrusiveness of a seizure by means of deadly force is unmatched," Garner, 471 U.S. at 9, the governmental interests in using such force must be powerful. We concluded that deadly force would be justified if the danger to an officer's life, or to the life or safety of an innocent third party were sufficiently great. Further, we noted:
We think those conclusions are still valid, and would support a broader use of military force -- consistent with the Fourth Amendment, to combat terrorism within the continental United States. The law has traditionally recognized that force (including deadly force) may be legitimately used in self-defense. "[S]elf defense is ... embodied in our jurisprudence as a consideration totally eliminating any criminal taint ... It is difficult to the point of impossibility to imagine a right in any state to abolish self defense altogether . . . ." Griffin v. Martin, 785 F.2d 1172, 1186-87 & n.37 (4th Cir. 1986), aff'd by an equally divided court, 795 F.2d 22 (4th Cir. 1986) (en banc), cert. denied, 480 U.S. 919 (1987). "More than two centuries ago, Blackstone, best known of the expositors of the English common law, taught that 'all homicide is malicious, and of course, amounts to murder, unless ... excused on the account of accident or self-preservation . . . .' Self-defense, as a doctrine legally exonerating the taking of human life, is as viable now as it was in Blackstone's time ...." United States v. Peterson, 483 F.2d 1222, 1228-29 (D.C. Cir.) (footnote omitted), cert denied, 414 U.S. 1007 (1973). See also United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148, 164 (1994) (application of criminal statute prohibiting destruction of civil aircraft to acts of United States military personnel in a state of hostilities could "readily lead to absurdities" because they "would not be able to engage in reasonable self-defense without subjecting themselves to the risk of criminal prosecution").
Moreover, the court in Romero v. Board of County Comm'rs, County of Lake, Colo., 60 F.3d 702, 704 (10th Cir. 1995), cert. denied, 516 U.S. 1073 (1996), held that a law enforcement officer's "use of deadly force in self-defense is not constitutionally unreasonable. See Garner, 471 U.S. at 11 (deadly force may be used if 'officer has probable cause to believe that the suspect poses a threat of serious physical harm either to the officer or to others') ... [See also] O'Neal v. DeKalb County, 850 F.2d 653, 655, 657-58 (11th Cir. 1988) (holding officers did not act unreasonably in shooting suspect who charged toward one of them with a knife)." Furthermore, deadly force may legitimately be used by governmental actors, not only in their own defense, but in defense of innocent third parties. See Cummingham v. Neagle, 135 U.S. 1, 58-59, 63-64 (1890); Garner, 471 U.S. at 11; Cole v. Bone, 993 F.2d at 1333; Ford v. Childers, 855 F.2d 1271, 1275 (7th Cir. 1988); United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. at 164 ("[A] USG officer or employee may use deadly force against civil aircraft without violating [a criminal statute] if he or she reasonably believes that the aircraft poses a threat of serious physical harm to another person.").
These precedents show that the use of force in the current circumstances would be reasonable, within the terms of the Fourth Amendment. Here, military force would be used against terrorists to prevent them from carrying out further attacks upon American citizens and facilities. This would amount to the exercise of the right of self-defense on a larger, but no less compelling, scale. A justification of self-defense therefore would justify the use of force, even deadly force, in counter-terrorism operations domestically. We stress that any calculus of reasonableness must also take into account that the September 11 attacks and the threat of further attacks pose a far graver threat to national security than the risk of terrorist attack in 1996. As we were aware at that time, any attack would have been discrete and localized. Here, however, attacks have fallen within an unfolding pattern of terrorism directed at the United States by a coordinated international network of terrorists. Nor would an attack on the Atlanta Games have had the same sweeping consequences for our nation's defense capabilities and financial stability as the attacks on the Pentagon and on the World Trade Center. Thus, in any judicial examination of the reasonableness of a particular military operation or class of operations, we think that the Government's interests must be given extraordinary weight; [40]
Conclusion
We conclude that the President has both constitutional and statutory authority to use the armed forces in military operations, against terrorists, within the United States. We believe that these operations generally would not be subject to the constraints of the Fourth Amendment, so long as the armed forces are undertaking a military function. Even if the Fourth Amendment were to apply, however, we believe that most military operations would satisfy the Constitution's reasonableness requirement and continue to be lawful.
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Notes:
1. Lewis Libby, Legal Authority for a Domestic Military Role in Homeland Defense, in Sidney D. Drell, Abraham D. Sofaer, & George D. Wilson (eds.), The New Terror: Facing the Threat of Biological and Chemical Weapons 305, 305 (1999).
2. See generally Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 93 Am. J. Int'l L. 161 (1999); Ruth Wedgwood, Responding to Terrorism: The Strikes Against Bin Laden, 24 Yale J. Int'l L. 559 (1999).
3. On September 12, 2001, the North Atlantic Council of the North Atlantic Treaty Organization ("NATO") agreed that the September 11 attack was directed from abroad against the United States, and decided that it would be regarded as an action covered by article 5 of the 1949 NATO Treaty, which states that an armed attack against one or more of the Allies in Europe or North America shall be considered an attack against them all. Press Release, NATO, Statement by the North Atlantic Council, available at http://www.nato.int/docu/update/2001/1001/e1002a.htm Article 5 of the NATO Treaty provides that if an armed attack against a NATO member occurs, each of them will assist the Party attacked "by taking forthwith, individually or in concert with the other Parties, such action as it deems necessary, including the use of armed force." North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 U.N.T.S. 243, 246.
4. It is true, however, that a condition of "war" has been found to exist for various legal purposes in armed conflicts between the United States and entities that lacked essential attributes of statehood, such as Indian bands, see Montoya v. United States, 180 U.S. 261, 265, 267 (1901) and insurrections threatening Western legations, see Hamilton v. McClaughry, 136 F. 445, 449 (C.C.D. Kan. 1905) (Boxer Rebellion).
5. We note that Washington's use of the militia to suppress the "Whiskey Rebellion" in western Pennsylvania was authorized by statute. See Edward S. Corwin, The President: Office and Powers 166 (1940).
6. See generally Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 66 (1993). Among the Presidents who have used troops domestically to protect federal functions or to enforce federal law are President Hayes in the railroad strike of 1877; President Cleveland in the Pullman strike of 1895; President Hoover in response to the "Bonus Army" in 1932; and President Eisenhower against Governor Faubus' resistance to school desegregation in 1957. President Theodore Roosevelt intended to use federal troops to take over mines and work them in the coal strike of 1902, had he not been able to settle the strike by other means. Theodore Roosevelt, Theodore Roosevelt: An Autobiography 489 (1985 reprint) (1913).
7. The breakdown of public order in Massachusetts during Shay's Rebellion of 1786-1787 -- which Alexander Hamilton described as a "civil war" in that State, The Federalist No. 6, at 24 (Alexander Hamilton) (Clinton Rossiter ed., 1999) -- and the obvious ineffectiveness of the Continental Congress in mustering troops to meet the crisis, were among the immediate causes leading to the call for the Constitution. See The Federalist No. 25, at 134- 35 (Alexander Hamilton) (illustrating need for new Constitution by discussing Shay's Rebellion); see also Andrew C. McLaughlin, The Confederation and the Constitution 1783-1789, at 114-17 (1971 reprint) (1962). Clearly, responding to events such as Shay's Rebellion would involve the use of military force domestically.
8. See also The Federalist No. 41, at 224 (James Madison) ("Security against foreign danger is one of the primitive objects of civil society. The powers requisite for attaining it must be effectually confided to the federal councils."). Supreme Court opinions echo Hamilton's argument that the Constitution presupposes the indefinite and unpredictable nature of the "the circumstances which may affect the public safety," and that the federal government's powers are correspondingly broad. Id. No. 23, at 122. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 662 (1981) (noting that the President "exercis[es] the executive authority in a world that presents each day some new challenge with which he must deal").
9. See 1 William Blackstone, Commentaries *257, *258 (1765) (attributing to the King "the sole prerogative of making war and peace," including the authority to "publicly declare[] and duly proclaim[]" war and to "begin[], conduct[], or conclud[e]" it); The Federalist No. 69, at 386 (Alexander Hamilton) (noting that "while [the power] of the British king extends to the declaring of war and to the raising and regulating of fleets and armies," those authorities "by the Constitution under consideration, would appertain to the legislature").
10. Article II's enumeration of the Treaty and Appointments Clauses only dilutes the unitary nature of the executive branch in regard to the exercise of those powers, rather than transforming them into quasi-legislative functions. See Constitutionality of Proposed Conditions to Senate Consent to the Interim Convention on Conservation of North Pacific Fur Seals, 10 Op. O.L.C. 12, 17 (1986) ("Nothing in the text of the Constitution or the deliberations of the Framers suggests that the Senate's advice and consent role in the treaty-making process was intended to alter the fundamental constitutional balance between legislative authority and executive authority.").
11. See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 196-241 (1996).
12. Benjamin Franklin had asserted in 1770 that maintaining a standing army without the consent of the colonial legislatures was "not agreeable to the Constitution." Quoted in Richard B. Morris, The Forging of the Union 1781-1789 at 32 (19S7). "Samuel Adams warned that 'the Sins of America may be punished by a standing Army,' and Richard Henry Lee agreed with James Monroe that it led to 'the destruction of liberty.' . . . One of the principal causes of the rejection of the famous Albany Plan in 1754 was that the Grand Council would have the right to raise troops and levy taxes as well as other critical powers." Jackson Turner Main, The Anti-Federalists: Critics of the Constitution 1781-1788, at 14-15 (1961).
13. 2 Farrand, supra at 329 (alteration in original).
14. Brutus X (Jan. 24, 1788), in 15 Documentary History of the Ratification of the Constitution 463 (John P. Kaminski et al. eds., 1984).
15. Washington assumed this interpretation of presidential power, and Madison defended it. Washington used force against the Wabash Indians pursuant to a statute that provided forces and authorized the call-up of militia to protect frontier inhabitants from hostile incursions of Indians. See Abraham D. Sofaer, The Power Over War, 50 U. Miami L. Rev. 33, 41 (1995). Furthermore, during President John Adams' administration, the United States and France were engaged in armed conflict, and Congress provided the President with frigates without any restriction on their use. Again, the bare statutory provision for a navy was thought sufficient by many congressmen to authorize the President to order such deployments. Finally, when President Thomas Jefferson deployed a naval squadron against the Barbary pirates, he relied on no specific delegation of authority to use force. Id. at 43.
16. Kahanamoku, 327 U.S. at 336 (Stone, C.J., concurring) ("Executive has broad discretion in determining when the public emergency is such as to give rise to the necessity" for emergency measures.); Hiroto v. MacArthur, 338 U.S. 197, 208 (1949) (Douglas, J., concurring) (The President has "full power to repel and defeat the enemy."); Mitchell v. Laird, 488 F.2d 611, 613 (D.C. Cir. 1973) ("there are some types of war which without Congressional approval, the President may begin to wage: for example, he may respond immediately without such approval to a belligerent attack"). The court further observed that "in a grave emergency [the President] may, without Congressional approval, take the initiative to wage war... In such unusual situations necessity confers the requisite authority upon the President. Any other construction of the Constitution would make it self-destructive." Id. at 613-14; Campbell v. Clinton, 203 F.3d 19, 27 (D.C. Cir.) (Silberman, J., concurring) ("[T]he President has independent authority to repel aggressive acts by third parties even without specific statutory authorization."), cert. denied, 531 U.S. 815 (2000); 203 F.3d at 40 (Tate], J., concurring) ("[T]he President, as commander in chief, possesses emergency authority to use military force to defend the Nation from attack without obtaining prior congressional approval."); Cox v. McNutt, 12 F. Supp. 355, 358-59 (S.D. Ind. 1935) (three-judge court) ("It cannot be controverted that the [Executive] has wide discretion in determining whether or not an exigency requires the use of military forces. If the [Executive] determines that an exigency requires the use of the military forces, then, in his discretion, be has authority to call out such forces, and the courts will not interfere therewith... . The nature of the 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, for, without such liberty to make immediate decisions, the power itself would be useless.").
17. See also Powers Mercantile Co. v. Olson, 7 F. Supp. 865, 867-68 ("[T]he Governor, as the chief executive officer of the state... is authorized... when in his judgment the exigencies of the situation require, to use the military forces of the state... [and] the means which are employed to restore law and order must necessarily be left largely to the discretion of the Governor and the commanding officer of the troops."); Hafeld v. Graham, 81 S.E. 533, 535 (W.Va. 1914) (upholding the Governor's seizure of a newspaper during the course of a domestic military campaign and noting that the Governor "is vested with the discretion to determine whether the conditions existing are such as to make it necessary to put into operation and effect the military power of the state and, having once exercised his judgment in the premises, in good faith, the courts have no power to review it and to declare his official act void").
18. See also Memorandum for John M. Quinn, Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Proposed Deployment of United States Armed Forces in Bosnia and Herzegovina, at 9 (Nov. 30, 1995); Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173, 176 (1994).
19. See also Hamilton v. Regents, 293 U.S. 245, 264 (1934) (federal government's war powers are "well-nigh limitless" in extent); Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 506 (1870) ("The measures to be taken in carrying on war ... are not defined (in the Constitution]. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution."); Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1870) ("The Constitution confers upon Congress expressly power to declare war, grant letters of marque and reprisal, and make rules respecting captures on land and water. Upon the exercise of these powers no restrictions are imposed. Of course the power to declare war involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted.").
20. The analysis and conclusion with respect to 10 U.S.C. § 375 (2000) would not materially differ.
21. The PCA originated as the Act of June 18, 1878, ch. 263, § 15, 20 Stat 145, 152. It was amended in 1956 to cover the Air Force. Act of Aug. 10, 1956, § 18(a), 70A Stat 626; see United States v. Walden, 490 F.2d 372, 375 n.5 (4th Cir.), cert. denied, 416 U.S. 983 (1974). The contemporary version of the PCA differs only slightly from the original.
22. The PCA originated in the House of Representatives of the 45th Congress. The House was then controlled by a Democratic majority sympathetic to the wishes of political majorities in the former Confederate States, and in vigorous opposition to a Republican-controlled Senate and a narrowly-elected Republican President, Rutherford B. Hayes. The House supporters of the measure intended it to "apply[] to everyone, from the Commander in Chief to the lowest officer, who presumed to take upon himself to decide when he would use the military force in violation of the law of the land." Wrynn v. United States, 200 F. Supp. 457, 464 (E.D.N.Y. 1961). However, the statute was amended by the Senate "by adding the reference to express Constitutional authorization and by deleting so much of the House Bill's language as referred to use of the military 'under the pretext' of executing the laws (7 Cong. Rec. 4240)." Id.; see also James P. O'Shaugbnessy, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am. Crim. L. Rev. 703, 704-13 (1976); Note, Honored in the Breech: Presidential Authority to Execute the Laws With Military Force, 83 Yale L.J. 130, 141-44 (1973).
23. Accord United States v. Thompson, 30 M.J. 570. 573 (A.F.C.M.R.) ("[T]he prohibitions contained in the Posse Comitatus Act ... do not now, nor were they ever intended to, limit military activities whose primary purpose is the furtherance of a military (or foreign affairs) function, regardless of benefits which may incidentally accrue to civilian law enforcement), aff'd, 32 M.J. 5 (C.M.A. 1990), cert. denied, 502 U.S. 1074 (1992).
Department of Defense ("DoD") regulations promulgated pursuant to a congressional directive in 10 U.S.C. § 375 also recognize that the PCA does not apply to or restrict "[a]ctions that are taken for the primary purpose of furthering a military or foreign affairs function of the United States, regardless of incidental benefits to civilian authorities." DoD Directive 5525.5, Enclosure 4, E4.1.2.1 (Jan. 15, 1986) (as amended Dec. 20, 1989). See generally United States v. Hitchcock, No. 00-10251 (D. Haw. 2001) at '4-•5 (reviewing and applying DoD Directive 5525.5). Several courts (including the court of appeals in Hitchcock) have accepted and applied the DoD Directive in a variety of circumstances to find that the use of the military was not in violation of the PCA or 10 U.S.C. § 375. See, e.g., United States v. Chon, 210 F.3d 990, 993 (9th Cir.) (activities of Navy Criminal Investigative Service "were permissible because there was an independent military purpose for their investigation - the protection of military equipment"), cert. denied, 531 U.S. 910 (2000); Applewhite v. United States Air Force, 995 F.2d 997, 1001 (10th Cir. 1993) (military may investigate illegal drug transactions by active duty military personnel), cert. denied, 510 U.S. 1190 (1994).
24. See, e.g., United States v. Kavanaugh, 807 F.2d 787, 790-91 (9t° Cir. 1987) (Kennedy, J.); United States v. Johnson, 952 F.2d 565, 572 (1" Cir. 1991), cert. denied, 506 U.S. 816 (1992); United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984).
25. For a review of some of the main statutory exceptions to the PCA, including several fairly recent enactments, see Doyle, supra, at 20-29; Major Kirk L. Davies, The Imposition of Martial Law in the United States, 49 A.F. L. Rev. 67, 80-82 (2000); see also Commander Jim Winthrop, The Oklahoma City Bombing: Immediate Response Authority, and Other Military Assistance to Civil Authority (MACA), 1997-JLTL Army Law. 3, 13-14.
26. Section 333 originated as § 3 of the Ku Klux Klan Act of April 20, 1871, Ch. 22, § 3, 17 Stat. 13, 14.
27. The Attorney General noted that in order to invoke his authority under § 333, "it is required that the President first issue a proclamation, as set forth in section 334 of title 10." The proclamation requirement remains in the law. See 10 U.S.C. § 334.
28. See, e.g., Kyllo v. United States, 121 S. Ct. 2038, 2042 (2001); Illinois v. McArthur, 121 S. Ct. 946, 949 (2001); Flippo v. West Virginia, 528 U.S. 11, 13 (1999); Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995). "The requirement that a warrant be obtained is a requirement that the inferences to support the search 'be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."' Schmerber v. California, 384 U.S. 757, 770 (1966) (quoting Johnson v. United States, 333 U.S. 10, 13-14 (1948)).
29. See Boyd v. United States, 116 U.S. 616,630(1986); Akhil Reed Amar, The Constitution and Criminal Procedure ch. 1 (1997); Telford Taylor, Two Studies in Constitutional Interpretation 35-44 (1969).
30. In time of insurrection, territory belonging to the United States has been held to be "hostile," and ordinary civil law was inapplicable to military actions there. See 24 Op. Att'y Gen. 570, 574 (1903) (armies of the United States were "in hostile territory" or "enemy's country" in Philippine Islands during insurrection, although United States was sovereign over territory).
31. Soon after the War of 1812, the scope of the President's authority to arrest and detain enemy aliens was litigated before Justice Bushrod Washington in Lockington v. Smith, 15 F. Cas. 758 (Case No. 8,448) (Cir. Ct. D. Pa. 1817) (Washington, Circuit Justice). The Act of July 6, 1798 had authorized the President to detain enemy aliens with a view of removing them from the United States. The plaintiff, a British alien, had been arrested and confined by a federal marshal in 1813 pursuant to a general order of President Madison. The plaintiff argued, in part, that the 1798 statute authorized the President to detain enemy aliens only for the purpose of removal, and that he had not been confined for that purpose. Justice Washington disagreed, holding that the legislation "appears to me to be as unlimited as the legislature could make it. ... There is not, I think, the slightest ground for the argument, that every restraint or confinement of an alien enemy is unauthorized by this law, unless it be made with a view to his removal from the United States. If this be the true construction of the act, it would follow that, however dangerous it might be, under any supposed circumstances, for alien enemies to quit the United States, possessed of information useful to the enemy, and detrimental to this Nation, they must nevertheless be either sent away, or be suffered to go at large, protected spies in the service of the enemy, and possibly in the vicinity of their armies and navy... It seems perfectly clear, that the power to remove was vested in the president, because, under certain circumstances, he might deem that measure most effectual to guard the public safety. But he might also cause the alien to be restrained or confined, if in his opinion the public good should forbid his removal." Id. at 760. Justice Washington also rejected the plaintiffs argument that the executive was required to resort to the courts to enforce the applicable regulations, once the President had issued them. The "great object" of the legislation, he said, "was to provide for the public safety, by imposing such restraints upon alien enemies, as the chief executive magistrate of the United States might think necessary, and of which his particular situation enabled him best to judge,." Id. at 761. Hence no judicial hearing was necessary before the alien could be seized. Nor could the Constitution be invoked to imply a right to a pre-seizure hearing: "I do not feel myself authorized to impose limits to the authority of the executive magistrate which congress, in the exercise of its constitutional powers, has not seen fit to impose." Id. In short, Justice Washington read the statute to vest broad emergency powers in the President to restrict the liberties of enemy aliens in time of war, and found it unproblematic that the President should summarily arrest and detain such persons in the interest of national security and without prior authorization by a magistrate.
The other War of 1812 precedents that might be read the other way appear only to stand for the proposition that military cannot use courts-martial or military commissions to try citizens who did not take part in military operations. In Smith v. Shaw, 12 Johns. 257 (N.Y. Sup. Ct. 1815), 1815 WI. 1065, the court sustained an action in trespass and false arrest brought by a naturalized citizen who had been arrested by two U.S. military officers on charges of spying, breach of parole, exciting mutiny, and illicit trading with the enemy and who had thereafter been detained in military custody. The court held that none of the offenses charged against the plaintiff was cognizable by court-martial, except that relating to the charge of spying; and by statute, see Act of April 10, 1806, citizens could not be "spies. The defendant had no right to detain the plaintiff to stand trial before a court-martial, because such a court would lack subject-matter jurisdiction. 1815 WL 1065 at *6.
Somewhat more instructive is M'Connell v. Hampton, 12 Johns. 234 (N.Y. Sup. Ct. 1815), 1815 WL 1058, a case from the same period and before the same court. There the court set aside a jury verdict against the defendant as excessive and ordered a new trial. The defendant, a U.S. army commander, had confined the plaintiff and had brought him to trial before a court-martial on a charge of treason. There was some evidence that the defendant was ''wantonly exercising his military power, for the purpose of gratifying an private resentment." 1815 WL 1058, at 11 (opinion of Thompson, C.J.). On the other hand, the evidence also showed that the defendant "had strong grounds for believing the plaintiff to be a suspicious character," id. at *12 (opinion of Spencer, J.), because of his dealings with the enemy. The majority of the judges held that the jury had been prejudiced and had awarded excessive damages. Judge Spencer stated that "[t]he defendant, as Commander in Chief of a division of the army, being near the enemy's territory [in Canada], and at no great distance from their forces, was bound, by every consideration of duty as a soldier ... to avoid surprise, and to guard himself against machinations of any kind... It seems to me that the jury have wholly overlooked the critical and delicate situation of the defendant, as a commander of an army upon the frontiers, as also the very suspicious light in which he must have viewed the plaintiff." Id. Again, the case only involved the question whether a citizen could be subject to the jurisdiction of a military court
32. Although the post-Civil War Supreme Court did allow tort actions to go forward against Union military officers who had arrested and imprisoned citizens at places remote from the scene of battle, it did not preclude the availability of the defense that such actions were authorized by Presidential order. See Beckwith v. Bean, 98 U.S. 266, 282-83 (1878) (leaving question undecided). It is true that several lower courts rejected such a defense. For example, in Griffin v. Wilcox, 21 Ind. 370 (1863), 1863 WL 2075, the court refused on constitutional grounds to give effect to an Act of Congress that established the defense of compliance with Presidential orders in suits in false arrest and imprisonment The court said that the President may not authorize "a military officer to seize and execute a private citizen of the United States, who was quietly pursuing his lawful business, in a State not in rebellion." 1863 WL 2075 at *9. But it seems to have been essential to these decisions that the challenged arrests and detentions took place far from the front. See id. at *10 ("the rebellion ... is not general, but local. It is confined to the Southern States. It is a sectional rebellion. The theatre of force. Where the civil tribunals are closed, is sectional, bounded by geographical lines."); see also Milligan v. Hovey, 17 F. Cas. 380, 381 (C.C.D. Ind. 1871) (Case No. 9,605); Johnson v. Jones, 44 Ill. 142 (1867), 1867 WL 5117 at *7. Moreover, one lower court decision in a post-Civil War false arrest case accepted that the defense based on congressional ratification of the executive's acts was available, but found that the defendants had failed to show that any order or authorization of the President's underlay their imprisonment of the plaintiff. McCall v. McDowell, 15 F. Cas. at 1245. Thus, the scope of the President's power to order the military to arrest and detain citizens in places where armed conflict was occurring or was likely to occur was not decided in these cases.
33. The claim that the Fourth Amendment does not apply to military actions inside the United States whose object is to combat an enemy operating here is not altogether novel: it was made, with respect to the Bill of Rights as a whole, during the Civil War. The legal adviser to the War Department during the War observed, however, that those rights "were intended as declarations of the rights of peaceful and loyal citizens, and safeguards in the administration of justice by the civil tribunals; but it was necessary, in order to give the government the means of defending itself against domestic or foreign enemies, to maintain its authority and dignity, and to enforce obedience to its laws, that it should have unlimited war powers; and it must not be forgotten that the same authority which provides those safeguards, and guarantees those rights, also imposes upon the President and Congress the duty of so carrying on war as of necessity to supersede and hold in temporary suspense such civil rights as may prove inconsistent with the complete and effectual exercise of such war powers, and of the belligerent rights resulting from them. The rights of war and the rights of peace cannot coexist. One must yield to the other. Martial law and civil law cannot operate at the same time and place upon the same subject matter. Hence the constitution is framed with full recognition of that fact; it protects the citizen in peace and in war; but his rights enjoyed under the constitution, in time of peace are different from those to which he is entitled in time of war." William Whiting, War Powers under the Constitution of the United States 50-51 (1864).
34. In a case decided not long after the end of the Civil War, the Supreme Court of Illinois reached similar conclusions. See Johnson v. Jones, 44 Ill. 142 (1867), 1867 WL 5117. This was an action in trespass brought by an alleged Confederate sympathizer in Illinois who had been arrested and imprisoned in a military fortress, purportedly on the authority of President Lincoln's orders. The court rejected the defense that the plaintiff had been arrested as a belligerent and held as a prisoner of war. It did, however, state that had the plaintiff been a belligerent, the order of the President was wholly unnecessary to authorize the arrest. Any soldier has the right, in time of war, to arrest a belligerent engaged in acts of hostility toward the government, and lodge him in the nearest military prison, and to use such force as may be necessary for that purpose -- even unto death.' 1867 WL at *5. Further, although the court also rejected the defense that the arrest was justified as an exercise of martial law, it also stated that '[i]f a commanding officer finds within his lines a person, whether citizen or alien, giving aid or information to the enemy, he can arrest and detain him so long as may be necessary for the security or success of his army. He can do this under the same necessity which will justify him, when an emergency requires it, in seizing or destroying the private property of a citizen.' Id. at *7. In terrorist wars, unlike conventional warfare, there are of course no battle lines, and the theater of operations may well be in heavily populated urban settings. We think, however, that the same principle applies, and that a military commander operating in such a theater has the same emergency powers of arrest and detention.
35. See also Powers Mercantile Co., 7 F. Supp. at 868 (upholding the seizure of a factory to prevent a violent attack by a mob and noting that "[u]nder military rule, constitutional rights of individuals must give way to the necessities of the situation; and the deprivation of such rights, made necessary in order to restore the community to order under the law, cannot be made the basis for injunction or redress"); Swope, 28 P.2d at 7 (upholding the seizure and detention of a suspected fomenter of domestic insurrection by the "military arm of the government," noting that "there is no limit [to the executive's power to safeguard public order] but the necessities and exigency of the situation" and that "in this respect there is no difference between a public war and domestic insurrection") (emphasis added) (quotations and citation omitted); In re Moyer, 85 P. 190, 193 (Colo. 1904) ("The arrest and detention of an insurrectionist, either actually engaged in acts of violence or in aiding and abetting other to commit such acts, violates none of his constitutional rights."); In re Boyle, 57 P. 706, 707 (Idaho 1899) (upholding the seizure and detention of a suspected rebel during time of domestic disorder).
36. See also Heflebower v. United States, 21 Ct. Cl. 228, 237-38 (1886) ("['There is a distinction to be drawn between property used for Government purposes and property destroyed for the public safety... [I]f the taking, using, or occupying was in the nature of destruction for the general welfare or incident to the inevitable ravages of war, such as the march of troops, the conflict of armies, the destruction of supplies, and whether brought about by casualty or authority, and whether on hostile or national territory, the loss, in the absence of positive legislation, must be borne by him on whom it falls, and no obligation to pay can be imputed to the Government.").
37. The defense of military necessity to a claim for compensation for the destruction of property has been held to apply in the circumstances of insurrection (and not only those of war) in the Philippines during the period in which those islands were territory of the United States. In an international arbitration case arising out of injuries to a British-owned plant during the insurrection in the Philippines after the Spanish-American War, the tribunal rejected the claimant's demand for arbitration, stating that the damage had been an incident of United States military operations against the insurgents, and that foreign residents whose property happened to be in the field of operations had no right to recover. See Luzon Suger Refining Co., Ltd. (Great Britain v. United States), Nielsen's Report (1926) 586, discussed in 6 Green Hay wood Hackworth. Digest of International Law 178-79 (1943).
38. Even in a case involving the destruction of a Confederate citizen's property by Confederate Army officers, the Supreme Court held military necessity to be a defense. In Ford v. Surges, 97 U.S. 594 (1878), the Court declared:
[T]he destruction of the [plaintiffs] cotton, under the orders of the Confederate military authorities, for the purpose of preventing it from falling into the hands of the Federal army, was ... an act of war upon the part of the military forces of the rebellion, for which the person executing such orders was relieved of civil responsibility. [The Confederate commanders] had the right, as an act of war, to destroy private property within the lines of the insurrection, belonging to those who were co-operating, directly or indirectly, in the insurrection against the government of the United States, if such destruction seemed to be required by impending necessity for the purpose of retarding the advance or crippling the military operations of the Federal forces.
Id. at 605-06. Moreover, the Court has also upheld, and construed liberally, statutes exempting persons from liability for acts of destroying or impressing property during wartime on the basis of the military authority vested in them. See, e.g., Beard v. Burls, 95 U.S. 434 (1877).
39. Thus, in Mrs. Alexander's Cotton, 69 U.S. 404 (1864), the Court upheld the Union navy's seizure of privately owned cotton from a Louisiana plantation as the capture and confiscation of enemy property, even though the area was for a brief time under occupation by the Union forces and even though the plaintiff claimed loyalty to the United States. See also Haycraft v. United States, 89 U.S. 81, 94 (1874); Beard v. Burrs, 95 U.S. at 438; cf. Price v. Poynter, 64 Ky. 387 (1867), 1867 WL 3918; Bell v. Louisville & Nashville R.R. Co., 64 Ky. 404 (1867), 1867 WL 3920.
40. Cf. Best v. United States, 184 F.2d 131, 139-41 (1st 1950) (Magruder, J.), cert. denied, 340 U.S. 939 (1951) (taking account of unsettled conditions in occupied Austria in immediate aftermath of Second World War in holding that warrantless search of Vienna apartment of U.S. national charged with treason pursuant to military orders was reasonable under Fourth Amendment).
In the aftermath of the Civil War, the Supreme Court upheld legislation enacted by Congress and enforced by the President that confiscated the property of "rebels," designated as such. Miller v. United States, 78 U.S. 268 (1870). The plaintiff had argued that the relevant provisions of the legislation were "municipal regulations only," i.e., "merely statutes against crimes," id. at 304, and therefore that the Fifth and Sixth Amendments should have applied. The Court rejected that contention, holding that the provisions "were not enacted under the municipal power of Congress to legislate for the punishment of crimes ... [but were] an exercise of the war powers of the government." Id. at 304-05. "Because "the power to declare war involves the power to prosecute it by all means and in any manner in which war may legitimately be prosecuted... [i]t therefore includes the right to seize and confiscate all property of an enemy and to dispose of it at the will of the captor." Id. at 305. Further, the Court upheld the confiscations despite the United States citizenship of the property owners. "[T]hose must be considered [enemies] who, though subjects or citizens of the lawful government, are residents of the territory under the power or control of the party resisting that government... . Have they not voluntary subjected themselves to that party? And is it not as important to take from them the sinews of war, their property, as it is to confiscate the property of rebel enemies resident within the rebel territory?" Id. at 311-12. Indeed, the Court even suggested that the property of disloyal residents within the Union could also have been confiscated in the same manner. Referring to the experience of the Framing generation during the Revolution, the Court found that the practice of the period showed "the general understanding that aiders and abettors of the public enemy were themselves enemies, and hence that their property might lawfully be confiscated." Id. at 312; see also id. at 311 (those who, though "subjects of a state in amity with the United States, are in the service of a state at war with them" are "public enemies"). Miller establishes that certain basic constitutional rights do not apply to the enemy, and that even United States citizenship may not negate the possibility that one may have the legal status of an enemy. Accord Ex pane Quirin, 317 U.S. 1 (1942). Other Supreme Court decisions from the Civil War are consistent with this outcome. [39]
The doctrine that a commander, acting in circumstances of compelling military necessity, may destroy a citizen's private property without causing the United States to incur an obligation of compensation has deep roots in the law. "In 1776 during the Revolution when private property was destroyed at Charleston in furthering military operations, during the War of 1812 when a plantation near New Orleans was damaged by inundation caused by the cutting of a levee to impede the advance of Packenham, during the Civil War, when a house was destroyed at Paducah, Ky., because its location on the outskirts of town made it a favorable point for an enemy sharpshooter, -- in all these cases the government refused to indemnify the owners... [D]uring the Civil War property vested in cotton was not protected and persons within the limits of the insurrection, whoever they might be, were unable to secure satisfaction because cotton was considered a military article, 'potentially an auxiliary of the enemy' by which he would be able to secure warlike material abroad." Elbridge Colby, War Crimes, 23 Mich. L. Rev. 606, 622-23 (1925) (footnote omitted).
These cases show the Court's consistent recognition that the protections of the Bill of Rights are tempered by the circumstances of war. The lessons of the Court's approach to the wartime application of the Fifth Amendment should apply to the Fourth Amendment, which also involves constitutional rights with respect to property. If the Court has found that wartime destruction of property does not involve a "taking" under the Fifth Amendment, it seems safe to conclude that the Court would not apply the Fourth Amendment to domestic military operations against foreign terrorists. The former involves a great intrusion into an individual's rights -- the complete destruction of property -- than does a temporary search and seizure of property. In any event, both rights would give way before the Government's compelling interest in responding to a direct, devastating attack on the United States, and in prosecuting a war successfully against international terrorists -- whether they are operating abroad or within the United States.
This is not, of course, to say that war suspends constitutional civil liberties. See, e.g., Ex pane Milligan, 71 U.S. (4 Wall.) 2, 124 (1866). But the Court has also found it "'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig, 453 U.S. at 307 (citation omitted), and has interpreted and applied constitutional protections to accommodate that overriding need. Here, we believe that the Constitution, properly interpreted, allows the President as Commander in Chief, and the forces under his control to use military force against foreign enemies who operate on American soil, free from the constraints of the Fourth Amendment.
We emphasize that nothing in this advice precludes the use of information obtained by military actions for criminal investigations or prosecutions, if obtaining it for such use is not a significant purpose of the action. As a general matter, the Fourth Amendment law does not require that a search or seizure have only a single purpose so long as it is otherwise legitimate. Thus, the police may engage in (objectively justified) traffic stops even if their underlying motive may be to investigate other violations as to which no probable cause or even articulable suspicion exists. See Whren v. United States, 517 U.S. 806 (1996); see also United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983) (otherwise valid warrantless boarding of vessel by customs officials not invalidated by facts that State police officer accompanied customs officials and officers were following tip that vessel might be carrying marijuana). In the FISA context, the courts have said that an "otherwise valid FISA surveillance is not tainted simply because the government can anticipate that the fruits of such surveillance may later be used, as allowed by [50 U.S.C.] § 1806(b), as evidence in a criminal trial." Duggan, 743 F.2d at 78. Thus, while the Government's military and law enforcement purposes may overlap, the Government should not be denied the benefits to its law enforcement functions so long as securing such benefits is not the predominant purpose of its military actions.
VI.
We have argued that the Fourth Amendment would not apply to military operations the President ordered within the United States to deter and prevent acts of terrorism. We recognize, however, that courts could decide otherwise, although we believe this would be at odds with the best reading of the constitutional text and history, practice, and the case law. Nonetheless, we analyze the standards that would govern if courts were to subject domestic military operations to the Fourth Amendment.
The Fourth Amendment's "'central requirement' is one of reasonableness." Illinois v. McArthur, 121 S. Ct. 946, 949 (2001) (quoting Texas v. Brown, 460 U.S. 730, 739 (1983)); see also Vernonia School Dist. 47J, 515 U.S. at 652 ("As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is 'reasonableness."'). Even in the context of ordinary law enforcement by the police, the Court has "made it clear that there are exceptions to the warrant requirement. When faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable." McArthur, 121 S. Ct. at 949. "The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it was conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559 (1979). In light of the extraordinary emergency created by the September 11, and taking account also of the compelling need military commanders would no doubt have to act swiftly in particular exigent circumstances, we think that the courts -- if they applied the Fourth Amendment at all - -would find that the challenged military conduct was "reasonable."
It is, of course, not possible to preview the reasonableness analysis for all possible uses of force within the United States. Our Office has, however, previously examined a somewhat similar situation, and the advice we gave at that time is relevant here. In 1996, we were asked whether law enforcement or the armed forces could use deadly force to defend against an aerial attack on the Summer Olympics in Atlanta, Georgia, consistent with the Fourth Amendment. Memorandum to File from Robert Delahunty, Special Counsel, Re: Use of Deadly Force Against Civil Aircraft Threatening to Attack 1996 Summer Olympic Games at 1 (Aug. 19, 1996). We began by noting the destruction of an aircraft would be a "seizure" within the meaning of the Fourth Amendment, and we assumed that the use of deadly force by the law enforcement or military personnel to prevent or repel an imminent aerial attack on the Olympic Games would be subject to the Fourth Amendment. See Garner, 471 U.S. at 7, 11; Graham v. Connor, 490 U.S. 386, 394-95 & n.10 (1989); Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993). Our Office assumed that the Fourth Amendment applied both because we were asked to as part of the hypothetical question, and because the possible use of the aircraft was not considered to be part of a larger military attack upon the United States.
In judging the constitutionality of the use of deadly force, we applied the Supreme Court's balancing test for determining "reasonableness" for Fourth Amendment purposes. Because "[t]he intrusiveness of a seizure by means of deadly force is unmatched," Garner, 471 U.S. at 9, the governmental interests in using such force must be powerful. We concluded that deadly force would be justified if the danger to an officer's life, or to the life or safety of an innocent third party were sufficiently great. Further, we noted:
The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight ... With respect to a claim of excessive force, the same standard of reasonableness at the moment applies .... The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation. Graham, 490 U.S. at 396-97.
We think those conclusions are still valid, and would support a broader use of military force -- consistent with the Fourth Amendment, to combat terrorism within the continental United States. The law has traditionally recognized that force (including deadly force) may be legitimately used in self-defense. "[S]elf defense is ... embodied in our jurisprudence as a consideration totally eliminating any criminal taint ... It is difficult to the point of impossibility to imagine a right in any state to abolish self defense altogether . . . ." Griffin v. Martin, 785 F.2d 1172, 1186-87 & n.37 (4th Cir. 1986), aff'd by an equally divided court, 795 F.2d 22 (4th Cir. 1986) (en banc), cert. denied, 480 U.S. 919 (1987). "More than two centuries ago, Blackstone, best known of the expositors of the English common law, taught that 'all homicide is malicious, and of course, amounts to murder, unless ... excused on the account of accident or self-preservation . . . .' Self-defense, as a doctrine legally exonerating the taking of human life, is as viable now as it was in Blackstone's time ...." United States v. Peterson, 483 F.2d 1222, 1228-29 (D.C. Cir.) (footnote omitted), cert denied, 414 U.S. 1007 (1973). See also United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148, 164 (1994) (application of criminal statute prohibiting destruction of civil aircraft to acts of United States military personnel in a state of hostilities could "readily lead to absurdities" because they "would not be able to engage in reasonable self-defense without subjecting themselves to the risk of criminal prosecution").
Moreover, the court in Romero v. Board of County Comm'rs, County of Lake, Colo., 60 F.3d 702, 704 (10th Cir. 1995), cert. denied, 516 U.S. 1073 (1996), held that a law enforcement officer's "use of deadly force in self-defense is not constitutionally unreasonable. See Garner, 471 U.S. at 11 (deadly force may be used if 'officer has probable cause to believe that the suspect poses a threat of serious physical harm either to the officer or to others') ... [See also] O'Neal v. DeKalb County, 850 F.2d 653, 655, 657-58 (11th Cir. 1988) (holding officers did not act unreasonably in shooting suspect who charged toward one of them with a knife)." Furthermore, deadly force may legitimately be used by governmental actors, not only in their own defense, but in defense of innocent third parties. See Cummingham v. Neagle, 135 U.S. 1, 58-59, 63-64 (1890); Garner, 471 U.S. at 11; Cole v. Bone, 993 F.2d at 1333; Ford v. Childers, 855 F.2d 1271, 1275 (7th Cir. 1988); United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. at 164 ("[A] USG officer or employee may use deadly force against civil aircraft without violating [a criminal statute] if he or she reasonably believes that the aircraft poses a threat of serious physical harm to another person.").
These precedents show that the use of force in the current circumstances would be reasonable, within the terms of the Fourth Amendment. Here, military force would be used against terrorists to prevent them from carrying out further attacks upon American citizens and facilities. This would amount to the exercise of the right of self-defense on a larger, but no less compelling, scale. A justification of self-defense therefore would justify the use of force, even deadly force, in counter-terrorism operations domestically. We stress that any calculus of reasonableness must also take into account that the September 11 attacks and the threat of further attacks pose a far graver threat to national security than the risk of terrorist attack in 1996. As we were aware at that time, any attack would have been discrete and localized. Here, however, attacks have fallen within an unfolding pattern of terrorism directed at the United States by a coordinated international network of terrorists. Nor would an attack on the Atlanta Games have had the same sweeping consequences for our nation's defense capabilities and financial stability as the attacks on the Pentagon and on the World Trade Center. Thus, in any judicial examination of the reasonableness of a particular military operation or class of operations, we think that the Government's interests must be given extraordinary weight; [40]
Conclusion
We conclude that the President has both constitutional and statutory authority to use the armed forces in military operations, against terrorists, within the United States. We believe that these operations generally would not be subject to the constraints of the Fourth Amendment, so long as the armed forces are undertaking a military function. Even if the Fourth Amendment were to apply, however, we believe that most military operations would satisfy the Constitution's reasonableness requirement and continue to be lawful.
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Notes:
1. Lewis Libby, Legal Authority for a Domestic Military Role in Homeland Defense, in Sidney D. Drell, Abraham D. Sofaer, & George D. Wilson (eds.), The New Terror: Facing the Threat of Biological and Chemical Weapons 305, 305 (1999).
2. See generally Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 93 Am. J. Int'l L. 161 (1999); Ruth Wedgwood, Responding to Terrorism: The Strikes Against Bin Laden, 24 Yale J. Int'l L. 559 (1999).
3. On September 12, 2001, the North Atlantic Council of the North Atlantic Treaty Organization ("NATO") agreed that the September 11 attack was directed from abroad against the United States, and decided that it would be regarded as an action covered by article 5 of the 1949 NATO Treaty, which states that an armed attack against one or more of the Allies in Europe or North America shall be considered an attack against them all. Press Release, NATO, Statement by the North Atlantic Council, available at http://www.nato.int/docu/update/2001/1001/e1002a.htm Article 5 of the NATO Treaty provides that if an armed attack against a NATO member occurs, each of them will assist the Party attacked "by taking forthwith, individually or in concert with the other Parties, such action as it deems necessary, including the use of armed force." North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 U.N.T.S. 243, 246.
4. It is true, however, that a condition of "war" has been found to exist for various legal purposes in armed conflicts between the United States and entities that lacked essential attributes of statehood, such as Indian bands, see Montoya v. United States, 180 U.S. 261, 265, 267 (1901) and insurrections threatening Western legations, see Hamilton v. McClaughry, 136 F. 445, 449 (C.C.D. Kan. 1905) (Boxer Rebellion).
5. We note that Washington's use of the militia to suppress the "Whiskey Rebellion" in western Pennsylvania was authorized by statute. See Edward S. Corwin, The President: Office and Powers 166 (1940).
6. See generally Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 66 (1993). Among the Presidents who have used troops domestically to protect federal functions or to enforce federal law are President Hayes in the railroad strike of 1877; President Cleveland in the Pullman strike of 1895; President Hoover in response to the "Bonus Army" in 1932; and President Eisenhower against Governor Faubus' resistance to school desegregation in 1957. President Theodore Roosevelt intended to use federal troops to take over mines and work them in the coal strike of 1902, had he not been able to settle the strike by other means. Theodore Roosevelt, Theodore Roosevelt: An Autobiography 489 (1985 reprint) (1913).
7. The breakdown of public order in Massachusetts during Shay's Rebellion of 1786-1787 -- which Alexander Hamilton described as a "civil war" in that State, The Federalist No. 6, at 24 (Alexander Hamilton) (Clinton Rossiter ed., 1999) -- and the obvious ineffectiveness of the Continental Congress in mustering troops to meet the crisis, were among the immediate causes leading to the call for the Constitution. See The Federalist No. 25, at 134- 35 (Alexander Hamilton) (illustrating need for new Constitution by discussing Shay's Rebellion); see also Andrew C. McLaughlin, The Confederation and the Constitution 1783-1789, at 114-17 (1971 reprint) (1962). Clearly, responding to events such as Shay's Rebellion would involve the use of military force domestically.
8. See also The Federalist No. 41, at 224 (James Madison) ("Security against foreign danger is one of the primitive objects of civil society. The powers requisite for attaining it must be effectually confided to the federal councils."). Supreme Court opinions echo Hamilton's argument that the Constitution presupposes the indefinite and unpredictable nature of the "the circumstances which may affect the public safety," and that the federal government's powers are correspondingly broad. Id. No. 23, at 122. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 662 (1981) (noting that the President "exercis[es] the executive authority in a world that presents each day some new challenge with which he must deal").
9. See 1 William Blackstone, Commentaries *257, *258 (1765) (attributing to the King "the sole prerogative of making war and peace," including the authority to "publicly declare[] and duly proclaim[]" war and to "begin[], conduct[], or conclud[e]" it); The Federalist No. 69, at 386 (Alexander Hamilton) (noting that "while [the power] of the British king extends to the declaring of war and to the raising and regulating of fleets and armies," those authorities "by the Constitution under consideration, would appertain to the legislature").
10. Article II's enumeration of the Treaty and Appointments Clauses only dilutes the unitary nature of the executive branch in regard to the exercise of those powers, rather than transforming them into quasi-legislative functions. See Constitutionality of Proposed Conditions to Senate Consent to the Interim Convention on Conservation of North Pacific Fur Seals, 10 Op. O.L.C. 12, 17 (1986) ("Nothing in the text of the Constitution or the deliberations of the Framers suggests that the Senate's advice and consent role in the treaty-making process was intended to alter the fundamental constitutional balance between legislative authority and executive authority.").
11. See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 196-241 (1996).
12. Benjamin Franklin had asserted in 1770 that maintaining a standing army without the consent of the colonial legislatures was "not agreeable to the Constitution." Quoted in Richard B. Morris, The Forging of the Union 1781-1789 at 32 (19S7). "Samuel Adams warned that 'the Sins of America may be punished by a standing Army,' and Richard Henry Lee agreed with James Monroe that it led to 'the destruction of liberty.' . . . One of the principal causes of the rejection of the famous Albany Plan in 1754 was that the Grand Council would have the right to raise troops and levy taxes as well as other critical powers." Jackson Turner Main, The Anti-Federalists: Critics of the Constitution 1781-1788, at 14-15 (1961).
13. 2 Farrand, supra at 329 (alteration in original).
14. Brutus X (Jan. 24, 1788), in 15 Documentary History of the Ratification of the Constitution 463 (John P. Kaminski et al. eds., 1984).
15. Washington assumed this interpretation of presidential power, and Madison defended it. Washington used force against the Wabash Indians pursuant to a statute that provided forces and authorized the call-up of militia to protect frontier inhabitants from hostile incursions of Indians. See Abraham D. Sofaer, The Power Over War, 50 U. Miami L. Rev. 33, 41 (1995). Furthermore, during President John Adams' administration, the United States and France were engaged in armed conflict, and Congress provided the President with frigates without any restriction on their use. Again, the bare statutory provision for a navy was thought sufficient by many congressmen to authorize the President to order such deployments. Finally, when President Thomas Jefferson deployed a naval squadron against the Barbary pirates, he relied on no specific delegation of authority to use force. Id. at 43.
16. Kahanamoku, 327 U.S. at 336 (Stone, C.J., concurring) ("Executive has broad discretion in determining when the public emergency is such as to give rise to the necessity" for emergency measures.); Hiroto v. MacArthur, 338 U.S. 197, 208 (1949) (Douglas, J., concurring) (The President has "full power to repel and defeat the enemy."); Mitchell v. Laird, 488 F.2d 611, 613 (D.C. Cir. 1973) ("there are some types of war which without Congressional approval, the President may begin to wage: for example, he may respond immediately without such approval to a belligerent attack"). The court further observed that "in a grave emergency [the President] may, without Congressional approval, take the initiative to wage war... In such unusual situations necessity confers the requisite authority upon the President. Any other construction of the Constitution would make it self-destructive." Id. at 613-14; Campbell v. Clinton, 203 F.3d 19, 27 (D.C. Cir.) (Silberman, J., concurring) ("[T]he President has independent authority to repel aggressive acts by third parties even without specific statutory authorization."), cert. denied, 531 U.S. 815 (2000); 203 F.3d at 40 (Tate], J., concurring) ("[T]he President, as commander in chief, possesses emergency authority to use military force to defend the Nation from attack without obtaining prior congressional approval."); Cox v. McNutt, 12 F. Supp. 355, 358-59 (S.D. Ind. 1935) (three-judge court) ("It cannot be controverted that the [Executive] has wide discretion in determining whether or not an exigency requires the use of military forces. If the [Executive] determines that an exigency requires the use of the military forces, then, in his discretion, be has authority to call out such forces, and the courts will not interfere therewith... . The nature of the 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, for, without such liberty to make immediate decisions, the power itself would be useless.").
17. See also Powers Mercantile Co. v. Olson, 7 F. Supp. 865, 867-68 ("[T]he Governor, as the chief executive officer of the state... is authorized... when in his judgment the exigencies of the situation require, to use the military forces of the state... [and] the means which are employed to restore law and order must necessarily be left largely to the discretion of the Governor and the commanding officer of the troops."); Hafeld v. Graham, 81 S.E. 533, 535 (W.Va. 1914) (upholding the Governor's seizure of a newspaper during the course of a domestic military campaign and noting that the Governor "is vested with the discretion to determine whether the conditions existing are such as to make it necessary to put into operation and effect the military power of the state and, having once exercised his judgment in the premises, in good faith, the courts have no power to review it and to declare his official act void").
18. See also Memorandum for John M. Quinn, Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Proposed Deployment of United States Armed Forces in Bosnia and Herzegovina, at 9 (Nov. 30, 1995); Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173, 176 (1994).
19. See also Hamilton v. Regents, 293 U.S. 245, 264 (1934) (federal government's war powers are "well-nigh limitless" in extent); Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 506 (1870) ("The measures to be taken in carrying on war ... are not defined (in the Constitution]. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution."); Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1870) ("The Constitution confers upon Congress expressly power to declare war, grant letters of marque and reprisal, and make rules respecting captures on land and water. Upon the exercise of these powers no restrictions are imposed. Of course the power to declare war involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted.").
20. The analysis and conclusion with respect to 10 U.S.C. § 375 (2000) would not materially differ.
21. The PCA originated as the Act of June 18, 1878, ch. 263, § 15, 20 Stat 145, 152. It was amended in 1956 to cover the Air Force. Act of Aug. 10, 1956, § 18(a), 70A Stat 626; see United States v. Walden, 490 F.2d 372, 375 n.5 (4th Cir.), cert. denied, 416 U.S. 983 (1974). The contemporary version of the PCA differs only slightly from the original.
22. The PCA originated in the House of Representatives of the 45th Congress. The House was then controlled by a Democratic majority sympathetic to the wishes of political majorities in the former Confederate States, and in vigorous opposition to a Republican-controlled Senate and a narrowly-elected Republican President, Rutherford B. Hayes. The House supporters of the measure intended it to "apply[] to everyone, from the Commander in Chief to the lowest officer, who presumed to take upon himself to decide when he would use the military force in violation of the law of the land." Wrynn v. United States, 200 F. Supp. 457, 464 (E.D.N.Y. 1961). However, the statute was amended by the Senate "by adding the reference to express Constitutional authorization and by deleting so much of the House Bill's language as referred to use of the military 'under the pretext' of executing the laws (7 Cong. Rec. 4240)." Id.; see also James P. O'Shaugbnessy, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am. Crim. L. Rev. 703, 704-13 (1976); Note, Honored in the Breech: Presidential Authority to Execute the Laws With Military Force, 83 Yale L.J. 130, 141-44 (1973).
23. Accord United States v. Thompson, 30 M.J. 570. 573 (A.F.C.M.R.) ("[T]he prohibitions contained in the Posse Comitatus Act ... do not now, nor were they ever intended to, limit military activities whose primary purpose is the furtherance of a military (or foreign affairs) function, regardless of benefits which may incidentally accrue to civilian law enforcement), aff'd, 32 M.J. 5 (C.M.A. 1990), cert. denied, 502 U.S. 1074 (1992).
Department of Defense ("DoD") regulations promulgated pursuant to a congressional directive in 10 U.S.C. § 375 also recognize that the PCA does not apply to or restrict "[a]ctions that are taken for the primary purpose of furthering a military or foreign affairs function of the United States, regardless of incidental benefits to civilian authorities." DoD Directive 5525.5, Enclosure 4, E4.1.2.1 (Jan. 15, 1986) (as amended Dec. 20, 1989). See generally United States v. Hitchcock, No. 00-10251 (D. Haw. 2001) at '4-•5 (reviewing and applying DoD Directive 5525.5). Several courts (including the court of appeals in Hitchcock) have accepted and applied the DoD Directive in a variety of circumstances to find that the use of the military was not in violation of the PCA or 10 U.S.C. § 375. See, e.g., United States v. Chon, 210 F.3d 990, 993 (9th Cir.) (activities of Navy Criminal Investigative Service "were permissible because there was an independent military purpose for their investigation - the protection of military equipment"), cert. denied, 531 U.S. 910 (2000); Applewhite v. United States Air Force, 995 F.2d 997, 1001 (10th Cir. 1993) (military may investigate illegal drug transactions by active duty military personnel), cert. denied, 510 U.S. 1190 (1994).
24. See, e.g., United States v. Kavanaugh, 807 F.2d 787, 790-91 (9t° Cir. 1987) (Kennedy, J.); United States v. Johnson, 952 F.2d 565, 572 (1" Cir. 1991), cert. denied, 506 U.S. 816 (1992); United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984).
25. For a review of some of the main statutory exceptions to the PCA, including several fairly recent enactments, see Doyle, supra, at 20-29; Major Kirk L. Davies, The Imposition of Martial Law in the United States, 49 A.F. L. Rev. 67, 80-82 (2000); see also Commander Jim Winthrop, The Oklahoma City Bombing: Immediate Response Authority, and Other Military Assistance to Civil Authority (MACA), 1997-JLTL Army Law. 3, 13-14.
26. Section 333 originated as § 3 of the Ku Klux Klan Act of April 20, 1871, Ch. 22, § 3, 17 Stat. 13, 14.
27. The Attorney General noted that in order to invoke his authority under § 333, "it is required that the President first issue a proclamation, as set forth in section 334 of title 10." The proclamation requirement remains in the law. See 10 U.S.C. § 334.
28. See, e.g., Kyllo v. United States, 121 S. Ct. 2038, 2042 (2001); Illinois v. McArthur, 121 S. Ct. 946, 949 (2001); Flippo v. West Virginia, 528 U.S. 11, 13 (1999); Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995). "The requirement that a warrant be obtained is a requirement that the inferences to support the search 'be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."' Schmerber v. California, 384 U.S. 757, 770 (1966) (quoting Johnson v. United States, 333 U.S. 10, 13-14 (1948)).
29. See Boyd v. United States, 116 U.S. 616,630(1986); Akhil Reed Amar, The Constitution and Criminal Procedure ch. 1 (1997); Telford Taylor, Two Studies in Constitutional Interpretation 35-44 (1969).
30. In time of insurrection, territory belonging to the United States has been held to be "hostile," and ordinary civil law was inapplicable to military actions there. See 24 Op. Att'y Gen. 570, 574 (1903) (armies of the United States were "in hostile territory" or "enemy's country" in Philippine Islands during insurrection, although United States was sovereign over territory).
31. Soon after the War of 1812, the scope of the President's authority to arrest and detain enemy aliens was litigated before Justice Bushrod Washington in Lockington v. Smith, 15 F. Cas. 758 (Case No. 8,448) (Cir. Ct. D. Pa. 1817) (Washington, Circuit Justice). The Act of July 6, 1798 had authorized the President to detain enemy aliens with a view of removing them from the United States. The plaintiff, a British alien, had been arrested and confined by a federal marshal in 1813 pursuant to a general order of President Madison. The plaintiff argued, in part, that the 1798 statute authorized the President to detain enemy aliens only for the purpose of removal, and that he had not been confined for that purpose. Justice Washington disagreed, holding that the legislation "appears to me to be as unlimited as the legislature could make it. ... There is not, I think, the slightest ground for the argument, that every restraint or confinement of an alien enemy is unauthorized by this law, unless it be made with a view to his removal from the United States. If this be the true construction of the act, it would follow that, however dangerous it might be, under any supposed circumstances, for alien enemies to quit the United States, possessed of information useful to the enemy, and detrimental to this Nation, they must nevertheless be either sent away, or be suffered to go at large, protected spies in the service of the enemy, and possibly in the vicinity of their armies and navy... It seems perfectly clear, that the power to remove was vested in the president, because, under certain circumstances, he might deem that measure most effectual to guard the public safety. But he might also cause the alien to be restrained or confined, if in his opinion the public good should forbid his removal." Id. at 760. Justice Washington also rejected the plaintiffs argument that the executive was required to resort to the courts to enforce the applicable regulations, once the President had issued them. The "great object" of the legislation, he said, "was to provide for the public safety, by imposing such restraints upon alien enemies, as the chief executive magistrate of the United States might think necessary, and of which his particular situation enabled him best to judge,." Id. at 761. Hence no judicial hearing was necessary before the alien could be seized. Nor could the Constitution be invoked to imply a right to a pre-seizure hearing: "I do not feel myself authorized to impose limits to the authority of the executive magistrate which congress, in the exercise of its constitutional powers, has not seen fit to impose." Id. In short, Justice Washington read the statute to vest broad emergency powers in the President to restrict the liberties of enemy aliens in time of war, and found it unproblematic that the President should summarily arrest and detain such persons in the interest of national security and without prior authorization by a magistrate.
The other War of 1812 precedents that might be read the other way appear only to stand for the proposition that military cannot use courts-martial or military commissions to try citizens who did not take part in military operations. In Smith v. Shaw, 12 Johns. 257 (N.Y. Sup. Ct. 1815), 1815 WI. 1065, the court sustained an action in trespass and false arrest brought by a naturalized citizen who had been arrested by two U.S. military officers on charges of spying, breach of parole, exciting mutiny, and illicit trading with the enemy and who had thereafter been detained in military custody. The court held that none of the offenses charged against the plaintiff was cognizable by court-martial, except that relating to the charge of spying; and by statute, see Act of April 10, 1806, citizens could not be "spies. The defendant had no right to detain the plaintiff to stand trial before a court-martial, because such a court would lack subject-matter jurisdiction. 1815 WL 1065 at *6.
Somewhat more instructive is M'Connell v. Hampton, 12 Johns. 234 (N.Y. Sup. Ct. 1815), 1815 WL 1058, a case from the same period and before the same court. There the court set aside a jury verdict against the defendant as excessive and ordered a new trial. The defendant, a U.S. army commander, had confined the plaintiff and had brought him to trial before a court-martial on a charge of treason. There was some evidence that the defendant was ''wantonly exercising his military power, for the purpose of gratifying an private resentment." 1815 WL 1058, at 11 (opinion of Thompson, C.J.). On the other hand, the evidence also showed that the defendant "had strong grounds for believing the plaintiff to be a suspicious character," id. at *12 (opinion of Spencer, J.), because of his dealings with the enemy. The majority of the judges held that the jury had been prejudiced and had awarded excessive damages. Judge Spencer stated that "[t]he defendant, as Commander in Chief of a division of the army, being near the enemy's territory [in Canada], and at no great distance from their forces, was bound, by every consideration of duty as a soldier ... to avoid surprise, and to guard himself against machinations of any kind... It seems to me that the jury have wholly overlooked the critical and delicate situation of the defendant, as a commander of an army upon the frontiers, as also the very suspicious light in which he must have viewed the plaintiff." Id. Again, the case only involved the question whether a citizen could be subject to the jurisdiction of a military court
32. Although the post-Civil War Supreme Court did allow tort actions to go forward against Union military officers who had arrested and imprisoned citizens at places remote from the scene of battle, it did not preclude the availability of the defense that such actions were authorized by Presidential order. See Beckwith v. Bean, 98 U.S. 266, 282-83 (1878) (leaving question undecided). It is true that several lower courts rejected such a defense. For example, in Griffin v. Wilcox, 21 Ind. 370 (1863), 1863 WL 2075, the court refused on constitutional grounds to give effect to an Act of Congress that established the defense of compliance with Presidential orders in suits in false arrest and imprisonment The court said that the President may not authorize "a military officer to seize and execute a private citizen of the United States, who was quietly pursuing his lawful business, in a State not in rebellion." 1863 WL 2075 at *9. But it seems to have been essential to these decisions that the challenged arrests and detentions took place far from the front. See id. at *10 ("the rebellion ... is not general, but local. It is confined to the Southern States. It is a sectional rebellion. The theatre of force. Where the civil tribunals are closed, is sectional, bounded by geographical lines."); see also Milligan v. Hovey, 17 F. Cas. 380, 381 (C.C.D. Ind. 1871) (Case No. 9,605); Johnson v. Jones, 44 Ill. 142 (1867), 1867 WL 5117 at *7. Moreover, one lower court decision in a post-Civil War false arrest case accepted that the defense based on congressional ratification of the executive's acts was available, but found that the defendants had failed to show that any order or authorization of the President's underlay their imprisonment of the plaintiff. McCall v. McDowell, 15 F. Cas. at 1245. Thus, the scope of the President's power to order the military to arrest and detain citizens in places where armed conflict was occurring or was likely to occur was not decided in these cases.
33. The claim that the Fourth Amendment does not apply to military actions inside the United States whose object is to combat an enemy operating here is not altogether novel: it was made, with respect to the Bill of Rights as a whole, during the Civil War. The legal adviser to the War Department during the War observed, however, that those rights "were intended as declarations of the rights of peaceful and loyal citizens, and safeguards in the administration of justice by the civil tribunals; but it was necessary, in order to give the government the means of defending itself against domestic or foreign enemies, to maintain its authority and dignity, and to enforce obedience to its laws, that it should have unlimited war powers; and it must not be forgotten that the same authority which provides those safeguards, and guarantees those rights, also imposes upon the President and Congress the duty of so carrying on war as of necessity to supersede and hold in temporary suspense such civil rights as may prove inconsistent with the complete and effectual exercise of such war powers, and of the belligerent rights resulting from them. The rights of war and the rights of peace cannot coexist. One must yield to the other. Martial law and civil law cannot operate at the same time and place upon the same subject matter. Hence the constitution is framed with full recognition of that fact; it protects the citizen in peace and in war; but his rights enjoyed under the constitution, in time of peace are different from those to which he is entitled in time of war." William Whiting, War Powers under the Constitution of the United States 50-51 (1864).
34. In a case decided not long after the end of the Civil War, the Supreme Court of Illinois reached similar conclusions. See Johnson v. Jones, 44 Ill. 142 (1867), 1867 WL 5117. This was an action in trespass brought by an alleged Confederate sympathizer in Illinois who had been arrested and imprisoned in a military fortress, purportedly on the authority of President Lincoln's orders. The court rejected the defense that the plaintiff had been arrested as a belligerent and held as a prisoner of war. It did, however, state that had the plaintiff been a belligerent, the order of the President was wholly unnecessary to authorize the arrest. Any soldier has the right, in time of war, to arrest a belligerent engaged in acts of hostility toward the government, and lodge him in the nearest military prison, and to use such force as may be necessary for that purpose -- even unto death.' 1867 WL at *5. Further, although the court also rejected the defense that the arrest was justified as an exercise of martial law, it also stated that '[i]f a commanding officer finds within his lines a person, whether citizen or alien, giving aid or information to the enemy, he can arrest and detain him so long as may be necessary for the security or success of his army. He can do this under the same necessity which will justify him, when an emergency requires it, in seizing or destroying the private property of a citizen.' Id. at *7. In terrorist wars, unlike conventional warfare, there are of course no battle lines, and the theater of operations may well be in heavily populated urban settings. We think, however, that the same principle applies, and that a military commander operating in such a theater has the same emergency powers of arrest and detention.
35. See also Powers Mercantile Co., 7 F. Supp. at 868 (upholding the seizure of a factory to prevent a violent attack by a mob and noting that "[u]nder military rule, constitutional rights of individuals must give way to the necessities of the situation; and the deprivation of such rights, made necessary in order to restore the community to order under the law, cannot be made the basis for injunction or redress"); Swope, 28 P.2d at 7 (upholding the seizure and detention of a suspected fomenter of domestic insurrection by the "military arm of the government," noting that "there is no limit [to the executive's power to safeguard public order] but the necessities and exigency of the situation" and that "in this respect there is no difference between a public war and domestic insurrection") (emphasis added) (quotations and citation omitted); In re Moyer, 85 P. 190, 193 (Colo. 1904) ("The arrest and detention of an insurrectionist, either actually engaged in acts of violence or in aiding and abetting other to commit such acts, violates none of his constitutional rights."); In re Boyle, 57 P. 706, 707 (Idaho 1899) (upholding the seizure and detention of a suspected rebel during time of domestic disorder).
36. See also Heflebower v. United States, 21 Ct. Cl. 228, 237-38 (1886) ("['There is a distinction to be drawn between property used for Government purposes and property destroyed for the public safety... [I]f the taking, using, or occupying was in the nature of destruction for the general welfare or incident to the inevitable ravages of war, such as the march of troops, the conflict of armies, the destruction of supplies, and whether brought about by casualty or authority, and whether on hostile or national territory, the loss, in the absence of positive legislation, must be borne by him on whom it falls, and no obligation to pay can be imputed to the Government.").
37. The defense of military necessity to a claim for compensation for the destruction of property has been held to apply in the circumstances of insurrection (and not only those of war) in the Philippines during the period in which those islands were territory of the United States. In an international arbitration case arising out of injuries to a British-owned plant during the insurrection in the Philippines after the Spanish-American War, the tribunal rejected the claimant's demand for arbitration, stating that the damage had been an incident of United States military operations against the insurgents, and that foreign residents whose property happened to be in the field of operations had no right to recover. See Luzon Suger Refining Co., Ltd. (Great Britain v. United States), Nielsen's Report (1926) 586, discussed in 6 Green Hay wood Hackworth. Digest of International Law 178-79 (1943).
38. Even in a case involving the destruction of a Confederate citizen's property by Confederate Army officers, the Supreme Court held military necessity to be a defense. In Ford v. Surges, 97 U.S. 594 (1878), the Court declared:
[T]he destruction of the [plaintiffs] cotton, under the orders of the Confederate military authorities, for the purpose of preventing it from falling into the hands of the Federal army, was ... an act of war upon the part of the military forces of the rebellion, for which the person executing such orders was relieved of civil responsibility. [The Confederate commanders] had the right, as an act of war, to destroy private property within the lines of the insurrection, belonging to those who were co-operating, directly or indirectly, in the insurrection against the government of the United States, if such destruction seemed to be required by impending necessity for the purpose of retarding the advance or crippling the military operations of the Federal forces.
Id. at 605-06. Moreover, the Court has also upheld, and construed liberally, statutes exempting persons from liability for acts of destroying or impressing property during wartime on the basis of the military authority vested in them. See, e.g., Beard v. Burls, 95 U.S. 434 (1877).
39. Thus, in Mrs. Alexander's Cotton, 69 U.S. 404 (1864), the Court upheld the Union navy's seizure of privately owned cotton from a Louisiana plantation as the capture and confiscation of enemy property, even though the area was for a brief time under occupation by the Union forces and even though the plaintiff claimed loyalty to the United States. See also Haycraft v. United States, 89 U.S. 81, 94 (1874); Beard v. Burrs, 95 U.S. at 438; cf. Price v. Poynter, 64 Ky. 387 (1867), 1867 WL 3918; Bell v. Louisville & Nashville R.R. Co., 64 Ky. 404 (1867), 1867 WL 3920.
40. Cf. Best v. United States, 184 F.2d 131, 139-41 (1st 1950) (Magruder, J.), cert. denied, 340 U.S. 939 (1951) (taking account of unsettled conditions in occupied Austria in immediate aftermath of Second World War in holding that warrantless search of Vienna apartment of U.S. national charged with treason pursuant to military orders was reasonable under Fourth Amendment).
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MEMO 2
EXECUTIVE ORDERS
Federal Register: November 16, 2001
(Volume 66, Number 2)
Presidential Documents
Page 57831-57836
Military Order of November 13, 2001
Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
By the authority vested in me as President and as Commander in Chief of the Armed Forces of the United States by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40, 115 Stat. 224) and sections 821 and 836 of title 10, United States Code, it is hereby ordered as follows:
I. Findings.
(a) International terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces.
(b) In light of grave acts of terrorism and threats of terrorism, including the terrorist attacks on September 11, 2001, on the headquarters of the United States Department of Defense in the national capital region, on the World Trade Center in New York, and on civilian aircraft such as in Pennsylvania, I proclaimed a national emergency on September 14, 2001 (Proc. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks).
(c) Individuals acting alone and in concert involved in international terrorism possess both the capability and the intention to undertake further terrorist attacks against the United States that, if not detected and prevented, will cause mass deaths, mass injuries, and massive destruction of property, and may place at risk the continuity of the operations of the United States Government.
(d) The ability of the United States to protect the United States and its citizens, and to help its allies and other cooperating nations protect their nations and their citizens, from such further terrorist attacks depends in significant part upon using the United States Armed Forces to identify terrorists and those who support them, to disrupt their activities, and to eliminate their ability to conduct or support such attacks.
(e) To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.
(f) Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.
(g) Having fully considered the magnitude of the potential deaths, injuries, and property destruction that would result from potential acts of terrorism against the United States, and the probability that such acts will occur, I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling govern-ment interest, and that issuance of this order is necessary to meet the emergency.
II. Definition and Policy.
(a) The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:
(1) there is reason to believe that such individual, at the relevant times,
(i) is or was a member of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and
(2) it is in the interest of the United States that such individual be subject to this order.
(b) It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4.
(c) It is further the policy of the United States that any individual subject to this order who is not already under the control of the Secretary of Defense but who is under the control of any other officer or agent of the United States or any State shall, upon delivery of a copy of such written determination to such officer or agent, forthwith be placed under the control of the Secretary of Defense.
III. Detention Authority of the Secretary of Defense.
Any individual subject to this order shall be --
(a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States;
(b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria;
(c) afforded adequate food, drinking water, shelter, clothing, and medical treatment;
(d) allowed the free exercise of religion consistent with the requirements of such detention; and
(e) detained in accordance with such other conditions as the Secretary of Defense may prescribe.
IV. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order.
(a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.
(b) As a military function and in light of the findings in section 1, including subsection (f) thereof, the Secretary of Defense shall issue such orders and regulations, including orders for the appointment of one or more military commissions, as may be necessary to carry out subsection (a) of this section.
(c) Orders and regulations issued under subsection (b) of this section shall include, but not be limited to, rules for the conduct of the proceedings of military commissions, including pretrial, trial, and post-trial procedures, modes of proof, issuance of process, and qualifications of attorneys, which shall at a minimum provide for --
(1) military commissions to sit at any time and any place, consistent with such guidance regarding time and place as the Secretary of Defense may provide;
(2) a full and fair trial, with the military commission sitting as the triers of both fact and law;
(3) admission of such evidence as would, in the opinion of the presiding officer of the military commission (or instead, if any other member of the commission so requests at the time the presiding officer renders that opinion, the opinion of the commission rendered at that time by a majority of the commission), have probative value to a reasonable person;
(4) in a manner consistent with the protection of information classified or classifiable under Executive Order 12958 of April 17, 1995, as amended, or any successor Executive Order, protected by statute or rule from unauthorized disclosure, or otherwise protected by law, (A) the handling of, admission into evidence of, and access to materials and information, and (B) the conduct, closure of, and access to proceedings;
(5) conduct of the prosecution by one or more attorneys designated by the Secretary of Defense and conduct of the defense by attorneys for the individual subject to this order;
(6) conviction only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present;
(7) sentencing only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present; and
(8) submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the Secretary of Defense if so designated by me for that purpose.
V. Obligation of Other Agencies to Assist the Secretary of Defense.
Departments, agencies, entities, and officers of the United States shall, to the maximum extent permitted by law, provide to the Secretary of Defense such assistance as he may request to implement this order.
VI. Additional Authorities of the Secretary of Defense.
(a) As a military function and in light of the findings in section 1, the Secretary of Defense shall issue such orders and regulations as may be necessary to carry out any of the provisions of this order.
(b) The Secretary of Defense may perform any of his functions or duties, and may exercise any of the powers provided to him under this order (other than under section 4(c)(8) hereof) in accordance with section 113(d) of title 10, United States Code.
VII. Relationship to Other Law and Forums.
(a) Nothing in this order shall be construed to --
(1) authorize the disclosure of state secrets to any person not otherwise authorized to have access to them;
(2) limit the authority of the President as Commander in Chief of the Armed Forces or the power of the President to grant reprieves and pardons; or
(3) limit the lawful authority of the Secretary of Defense, any military commander, or any other officer or agent of the United States or of any State to detain or try any person who is not an individual subject to this order.
(b) With respect to any individual subject to this order --
(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and
(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.
(c) This order is not intended to and does not create any right, benefit, or privilege, substantive or procedural, enforceable at law or equity by any party, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.
(d) For purposes of this order, the term "State" includes any State, district, territory, or possession of the United States.
(e) I reserve the authority to direct the Secretary of Defense, at any time hereafter, to transfer to a governmental authority control of any individual subject to this order. Nothing in this order shall be construed to limit the authority of any such governmental authority to prosecute any individual for whom control is transferred.
VIII. Publication.
This order shall be published in the Federal Register.
GEORGE W. BUSH
THE WHITE HOUSE,
November 13, 2001.
EXECUTIVE ORDERS
Federal Register: November 16, 2001
(Volume 66, Number 2)
Presidential Documents
Page 57831-57836
Military Order of November 13, 2001
Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
By the authority vested in me as President and as Commander in Chief of the Armed Forces of the United States by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40, 115 Stat. 224) and sections 821 and 836 of title 10, United States Code, it is hereby ordered as follows:
I. Findings.
(a) International terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces.
(b) In light of grave acts of terrorism and threats of terrorism, including the terrorist attacks on September 11, 2001, on the headquarters of the United States Department of Defense in the national capital region, on the World Trade Center in New York, and on civilian aircraft such as in Pennsylvania, I proclaimed a national emergency on September 14, 2001 (Proc. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks).
(c) Individuals acting alone and in concert involved in international terrorism possess both the capability and the intention to undertake further terrorist attacks against the United States that, if not detected and prevented, will cause mass deaths, mass injuries, and massive destruction of property, and may place at risk the continuity of the operations of the United States Government.
(d) The ability of the United States to protect the United States and its citizens, and to help its allies and other cooperating nations protect their nations and their citizens, from such further terrorist attacks depends in significant part upon using the United States Armed Forces to identify terrorists and those who support them, to disrupt their activities, and to eliminate their ability to conduct or support such attacks.
(e) To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.
(f) Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.
(g) Having fully considered the magnitude of the potential deaths, injuries, and property destruction that would result from potential acts of terrorism against the United States, and the probability that such acts will occur, I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling govern-ment interest, and that issuance of this order is necessary to meet the emergency.
II. Definition and Policy.
(a) The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:
(1) there is reason to believe that such individual, at the relevant times,
(i) is or was a member of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and
(2) it is in the interest of the United States that such individual be subject to this order.
(b) It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4.
(c) It is further the policy of the United States that any individual subject to this order who is not already under the control of the Secretary of Defense but who is under the control of any other officer or agent of the United States or any State shall, upon delivery of a copy of such written determination to such officer or agent, forthwith be placed under the control of the Secretary of Defense.
III. Detention Authority of the Secretary of Defense.
Any individual subject to this order shall be --
(a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States;
(b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria;
(c) afforded adequate food, drinking water, shelter, clothing, and medical treatment;
(d) allowed the free exercise of religion consistent with the requirements of such detention; and
(e) detained in accordance with such other conditions as the Secretary of Defense may prescribe.
IV. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order.
(a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.
(b) As a military function and in light of the findings in section 1, including subsection (f) thereof, the Secretary of Defense shall issue such orders and regulations, including orders for the appointment of one or more military commissions, as may be necessary to carry out subsection (a) of this section.
(c) Orders and regulations issued under subsection (b) of this section shall include, but not be limited to, rules for the conduct of the proceedings of military commissions, including pretrial, trial, and post-trial procedures, modes of proof, issuance of process, and qualifications of attorneys, which shall at a minimum provide for --
(1) military commissions to sit at any time and any place, consistent with such guidance regarding time and place as the Secretary of Defense may provide;
(2) a full and fair trial, with the military commission sitting as the triers of both fact and law;
(3) admission of such evidence as would, in the opinion of the presiding officer of the military commission (or instead, if any other member of the commission so requests at the time the presiding officer renders that opinion, the opinion of the commission rendered at that time by a majority of the commission), have probative value to a reasonable person;
(4) in a manner consistent with the protection of information classified or classifiable under Executive Order 12958 of April 17, 1995, as amended, or any successor Executive Order, protected by statute or rule from unauthorized disclosure, or otherwise protected by law, (A) the handling of, admission into evidence of, and access to materials and information, and (B) the conduct, closure of, and access to proceedings;
(5) conduct of the prosecution by one or more attorneys designated by the Secretary of Defense and conduct of the defense by attorneys for the individual subject to this order;
(6) conviction only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present;
(7) sentencing only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present; and
(8) submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the Secretary of Defense if so designated by me for that purpose.
V. Obligation of Other Agencies to Assist the Secretary of Defense.
Departments, agencies, entities, and officers of the United States shall, to the maximum extent permitted by law, provide to the Secretary of Defense such assistance as he may request to implement this order.
VI. Additional Authorities of the Secretary of Defense.
(a) As a military function and in light of the findings in section 1, the Secretary of Defense shall issue such orders and regulations as may be necessary to carry out any of the provisions of this order.
(b) The Secretary of Defense may perform any of his functions or duties, and may exercise any of the powers provided to him under this order (other than under section 4(c)(8) hereof) in accordance with section 113(d) of title 10, United States Code.
VII. Relationship to Other Law and Forums.
(a) Nothing in this order shall be construed to --
(1) authorize the disclosure of state secrets to any person not otherwise authorized to have access to them;
(2) limit the authority of the President as Commander in Chief of the Armed Forces or the power of the President to grant reprieves and pardons; or
(3) limit the lawful authority of the Secretary of Defense, any military commander, or any other officer or agent of the United States or of any State to detain or try any person who is not an individual subject to this order.
(b) With respect to any individual subject to this order --
(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and
(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.
(c) This order is not intended to and does not create any right, benefit, or privilege, substantive or procedural, enforceable at law or equity by any party, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.
(d) For purposes of this order, the term "State" includes any State, district, territory, or possession of the United States.
(e) I reserve the authority to direct the Secretary of Defense, at any time hereafter, to transfer to a governmental authority control of any individual subject to this order. Nothing in this order shall be construed to limit the authority of any such governmental authority to prosecute any individual for whom control is transferred.
VIII. Publication.
This order shall be published in the Federal Register.
GEORGE W. BUSH
THE WHITE HOUSE,
November 13, 2001.
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MEMO 3
U.S. Department of Justice
Office of the Legal Counsel
Office of the Deputy Assistant Attorney General
Washington, D.C. 20530
December 28, 2001
MEMORANDUM FOR WILLIAM J. HAYNES, II
GENERAL COUNSEL, DEPARTMENT OF DEFENSE
FROM: Patrick F. Philbin
Deputy Assistant Attorney General
John C. Yoo
Deputy Assistant Attorney General
RE: Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba
This memorandum addresses the question whether a federal district court would properly have jurisdiction to entertain a petition for a writ of habeas corpus filed on behalf of an alien detained at the U.S. naval base at Guantanamo Bay, Cuba ("GBC"). This question has arisen because of proposals to detain al Qaeda and Taliban members at GBC pending possible trial by military commission. If a federal district court were to take jurisdiction over a habeas petition, it could review the constitutionality of the detention and theuse of a military commission, the application of certain treaty provisions, and perhaps even the legal status of al Qaeda and Taliban members.
We conclude that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at GBC. Nonetheless, we cannot say with absolute certainty that any such petition would be dismissed for lack of jurisdiction. A detainee could make a non-frivolous argument that jurisdiction does exist over aliens detained at GBC, and we have found no decisions that clearly foreclose the existence of habeas jurisdiction there. On the other hand, it does not appear than any federal court has allowed a habeas petition to proceed from GBC, either. While we believe that the correct answer is that federal courts lack jurisdiction over habeas petitions filed by alien detainees held outside the sovereign territory of the United States, there remains some litigation risk that a district court might reach the opposite result.
I.
The basis for denying jurisdiction to entertain a habeas petition filed by an alien held at GBC rests on Johnson v. Eisentrager, 339 U.S. 763 (1950). In that case, the Supreme Court held that federal courts did not have authority to entertain an application for habeas relief filed by an enemy alien who had been seized and held at all relevant times outside the territory of the United States. See id. at 768-78. Eisentrager involved several German soldiers who had continued to aid the Japanese in China after Germany had surrendered in April 1945. They were seized, tried by military commission in Nanking, China and subsequently imprisoned in Germany. From there, they filed an application for habeas corpus in the District Court for the District of Columbia, naming as respondents the Secretary of Defense, Secretary of the Army, and the Joint Chiefs of Staff. Id. at 766-67. The Court concluded that the federal courts were without power to grant habeas relief because the plaintiffs were beyond the territorial sovereignty of the United States and outside the territorial jurisdiction of any U.S. court. As the Court explained:
Id. at 777-78. [1]
The Court seemed to acknowledge tacitly that the habeas application could fall within the literal terms of the federal statute defining the power of federal courts to grant habeas corpus relief. Then, as now, the statute did not expressly restrict the jurisdiction of courts to issue the writ solely to situations where a prisoner was held within the territorial jurisdiction of the court. Instead, the statute states simply that courts may grant the writ "within their respective jurisdictions." See 28 U.S.C. § 2241 (1994) ("Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions."). It has been held sufficient for jurisdiction to grant the writ if a person with authority over the custody of the prisoner is within the jurisdiction of the court. [2] The Supreme Court assumed that, "while [the] prisoners are in immediate physical custody of an officer or officers not parties to the proceeding, respondents named in the petition have lawful authority to effect their release." 339 U.S. at 766-67. The Court, however, reasoned that the answer to the court's power did not lie in the statute. Rather, it explained that, for the question before it, "answers stem directly from fundamentals," and that they "cannot be found by casual reference to statutes or cases. 339 U.S. at 468. In analyzing those "fundamentals" the Court concluded that an alien held outside the United States cannot seek the writ of habeas corpus.
The analysis from Eisentrager should apply to bar any habeas application filed by an alien held at GBC. In the critical passage that most nearly summarizes the Court's holding, the Eisentrager Court based its conclusion on the fact that the prisoners were seized, tried, and held in territory that was outside the sovereignty of the United States and outside the territorial jurisdiction of any court of the United States. We do not believe that the Court intended to establish a two-part test, distinguishing between "sovereign" territory and territorial "jurisdiction." Instead, we believe that the Court used the latter term interchangeably with the former to explain why an alien has no right to a writ of habeas corpus when held outside the sovereign territory of the United States. The same reasoning applies to GBC because it is outside the sovereign territory of the United States.
The United States holds GBC under a lease agreement with Cuba entered into in 1903. See Agreement Between the United States of American and the Republic of Cuba for the Lease to the United States of Lands in Cuba for Coaling and Naval Stations, Feb. 16-23, 1903, U.S.-Cuba T.S. No. 418 6 Bevans 1113 ("Lease Agreement"). [3] That agreement expressly provides that "the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the" lands and waters subject to the lease. Id. art. III. Although the agreement goes on to state that the United States "shall exercise complete jurisdiction and control over and within" the leased areas, it specifically reserves sovereignty to Cuba. Id.
The terms of the Lease Agreement are thus definitive on the question of sovereignty and should not be subject to question in the courts. The Supreme Court has acknowledged that "the determination of sovereignty over an area is for the legislative and executive departments" -- that is, it is not a question on which the courts should second-guess the political branches. Vermilya-Brown Co. v. Connell, 335 U.S. 377, 380 (1948). Indeed, in Vermilya-Brown all nine members of the Supreme Court observed that the United States has no sovereignty over GBC. The issue in Vermilya-Brown Co. v. Connell, was whether the Fair Labor Standards Act ("FLSA") applied to a United States military base in Bermuda. Five members held that the FLSA applied to "foreign territory under lease for bases," id. at 390, while the four dissenters concluded that theFLSA applied only in "any Territory or possession of the United States," id. (Jackson, J., dissenting). All nine believed, however, that neither Bermuda nor GBC was subject to the sovereignty of the United States.
At the time when Vermilya-Brown was decided, the United States was operating military bases in Bermuda pursuant to a 99-year leasehold. That lease ended in September 1, 1995, when both bases were closed and the land returned to the Government of Bermuda. See id. at 378; see also http://www.virtualsources.com/Countries ... ermuda.htm. Based on the terms of that leasehold, the majority noted the state Department's position that [t]he arrangements under which the [United States'] leased bases [of Bermuda] were acquired from Great Britain did not and were not intended to transfer sovereignty over the leased areas from Great Britain to the United States." 335 U.S. at 380. Accordingly, those five justices concluded "that the leased area is under the sovereignty of Great Britain and that it is not territory of the United States in a political sense, that is, a part of its national domain." Id. at 380-81. Moreover, the majority specifically stated that the United States also has "a lease from the Republic of Cuba of an area at Guantanamo Bay for a coaling or naval station," and that "[t]he United States was granted by the Cuban lease substantially the same rights as it has in the Bermuda lease." Id. at 383 & n.5 (quoting 1903 US-Cuba agreement).
Similarly, the dissent contended that "Bermuda and like bases are not ... our possessions." Id. at 392 (Jackson, J., dissenting). "Guantanamo Naval Base, ... a leased base in Cuba ... has been ruled by the ATtorney General not to be a possession; it has not been listed by the State Department as among our 'non-self-governing territories,' and the Administrator of the very Act before us has not listed it among our possessions." Id. at 405 (Jackson, J., dissenting) (footnotes omitted). The disagreement in the case was not whether the United States exercised sovereignty over GBC -- all agreed that the United States did not -- but rather whether the FLSA applies extraterritorially to include U.S. military bases such as those in Bermuda and GBC. The Eisentrager analysis turns, of course, on whether the United States exercises sovereignty over a particular territory.
The Vermilya-Brown decision does not stand alone in concluding that the United States does not exercise sovereignty over GBC. More recently, in 1995, the Eleventh Circuit similarly relied on the terms of the Lease Agreement to conclude that GBC is not within the sovereign territory of the United States. See Cuban American Bar Ass'n. Inc v. Christopher, 43 F.3d 1412, 1425 (11th Cir. 1995) ("The district court here erred in concluding that Guantanamo Gay was a 'United States territory.' We disagree that 'control and jurisdiction' is equivalent to sovereignty.") (citations omitted); id. (rejecting "the argument that our leased military bases abroad which continue under the sovereignty of foreign nations, hostile or friendly, are 'functional[ly] equiavalent' to being land borders orports of entry of the United States or otherwise within the United States") (alteration in original). And the District of Connecticut has likewise held that "sovereignty over the Guantanamo Bay does not rest wtih the United States." Bird v. United States, 923 F.Supp. 338, 343 (D. Conn. 1996). See also id. ("Because the 1903 Lease of Lands Agreement clearly establishes Cuba as the de jure sovereign over Guantanamo Bay, this Court need not speculate whether the United States is the de facto sovereign over the area.").
The position of GBC stands in sharp contrast to the status of the Philippine Islands in cases arising out of World War II. General Yamashita was tried in the Philippines by a U.S. military commission from October to December of 1945, and the Supreme Court chose to exercise habeas jurisdiction in reviewing the commission's decision. See Application of Yamashita, 327 U.S. 1, 5 (1946). At that time, however, the Philippine Islands was an insular possession, and not a mere U.S. leasehold interest. See Eisentrager, 339 U.S. at 780 ("By reason of our sovereignty at that time over these insular possessions, Yamashita stood much as did Quirin before American courts. Yamashita's offenses were committed on our territory, he was tried within the jurisdiction of our insular courts and he was imprisoned within territory of the United States."). The United States exercised sovereignty over the Philippines until July 4, 1946, see generally 48 U.S.C. ch. 5 (1994), at which time the Philippines became an independent sovereign. The United States retained a military base there -- and it was that condition which the Vermilya-Brown Court compared to Bermuda and GBC. See Vermilya-Brown, 335 U.S. at 384 & n.7. The Court's treatment of the Philippines after July 4, 1946, thus affirms our conclusion that the United States interest in GBC today is markedly different, for Eisentrager purposes, than that in the Philippines prior to July 4, 1946.
GBC is also outside the "territorial jurisdiction of any court of hte United States." Eisentrager, 339 U.S. 778. The territory of ever federal district court is defined by statute. See 28 U.S.C. §§ 81-131 (1994); 48 U.S.C. §§ 1424, 1424b, 1821-1826 (1994). GBC is not included within the territory defined for any district. In contrast, other island bases that are considered territories or possessions of the United States are expressly defined within the jurisdiction of specific district courts, even if they are retained largely for military use. See, e.g., 28 U.S.C. § 91 (defining the District of Hawaii to include "the Midway Islands, Wake Island, Johnston Island, Kingman Reef," and other islands). [4]
Finally, the executive branch has repeatedly taken the position under various statutes that GBC is neither part of the United States nor a possession or territory of the United States. For example, this Office has opined that GBC is not part of the "United States' for purposes of the Immigration and Naturalization Act. See Memorandum for the Associate Attorney General, from Larry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Status of Guantanamo Bay (Oct. 27, 1981). Similarly, in 1929, the Attorney General opined that GBC was not a "possession" of the United STates within the meaning of certain tariff acts. See Customs Duties -- Goods Brought into United States Naval Station at Guantanamo Bay, Cuba, 35 Op. Atty Gen. 536 (1929). GBC was "a mere governmental outpost beyond our borders" and "a place subject to the use, occupation and control of the United States," without being part of sovereign territory. Id. at 541, 540. Although neither of these opinions is directly on point here, because each addresses the status of GBC under a particular statutory definition, they demonstrate that the United States has consistently taken the position that GBC remains foreign territory, not subject to U.S. sovereignty. [5]
II.
For the reasons outlined above, we believe that the rationale for holding that there is no jurisdiction to entertain a habeas petition from an alien held at GBC is very strong and is the correct result under Eisentrager. Nevertheless, we caution that there is a potential ground for uncertainty arising from an arguable imprecision in the Supreme Court's language in Eisentrager. As noted above, in a critical passage the Court stated that habeas urisdiction was not available because the aliens were not within "territory over which the United States is sovereign." 339 U.S. at 778. In the very same sentence, however, the Court also stated that habeas jurisdiction did not exist because the events and detention occurred outside "the territorial jurisdiction" of any federal court. Id. If an alien detainee is both outside the United States' sovereign territory and outside the territorial jurisdiction of a federal court, then it is clear that no habeas urisdiction exists. We have explained above that we believe GBC meets those conditions. A non-frivolous argument might be constructed, however, that GBC, while not part of sovereign territory of the United States, is within the territorial jurisdiction of a federal court. In that scenario, the application of Eisentrager might not be as clear. This is because "sovereignty" over territory and "jurisdiction" over territory could mean different things. A nation, for example, can retain its sovereignty over its territory, yet at the same time allow another nation to exercise limited jurisdiction within it.
It might be argued that the difference in language in Eisentrager must be given meaning, which can only be done if there is a difference between "sovereignty" and "jurisdiction." A court could find that the U.S.-Cuba lease agreement lends itself rather well to this distinction, since it makes clear that the United States exercises "complete jurisdiction and control" over GBC, even though Cuba retains "sovereignty." Lease Agreement, 6 Bevans 1114. Although Eisentrager seems to permit aliens to bring habeas petitions onlyo in areas within the sovereign control of the United States, which by the 1903 agreement does not extend to GBC, a court could find that Eisentrager's mention of territorial jurisdiction does not preclude habeas jurisdiction at GBC.
A district court also might find support in some cases, although (as explained below) we believe that these precedents are not good law. In Haitian Centers Council, Inc. v. McNary, 969 F.2d 1326 (2nd Cir. 1992), the Second Circuit stated that "Guantanamo Bay is a military installation that is subject to the exclusive control and jurisdiction of the United States." Id. at 1342. As a result of the United States' exclusive control, the court concluded that some constitutional rights applied to Haitian refugees held at GBC and that an interest group could file for a preliminary injunction in federal court in New York to vindicate those rights. The court also relied in part on the fact that certain U.S. criminal laws apparently applied to GBC under the definition of the United States' "special maritime and territorial jurisdiction" in section 7 of title 18, United States Code. See id. at 1342. That placed GBC, at least in some sense, under U.S. "jurisdiction." Similarly, in Haitian Centers Council, Inc. v. Sale, 823 F. Supp. 1028 (E.D.N.Y. 1993), the district court relied on McNary to hold that, because "Guantanamo Bay Naval Base ... is under the complete control and jurisdiction of the United States government," aliens held there must be granted some constitutional protections. Id. at 1040.
For a number of reasons, however, we believe that a federal district court would not accept these arguments. First, the best reading of Eisentrager indicates that the Court was only permitting habeas jurisdiction within the sovereign territory of the United States, which does not include GBC. Second, no federal statutes include GBC wiothin the territorial jurisdiction of any federal district court. The fact that the United States can exercise some "jurisdiction" and "control" over the base is not the relevant factor for the purposes of the analysis in Eisentrager. Presumably the United States similarly exercised considerable "jurisdiction" and "control" over the Landsberg Prison, which was under the command of an American Army general at the time, where the applicants in Eisentrager were held. That, however, was not deemed relevant to the Court's analysis.
Third, the McNary and Sale cases cited above are not persuasive authority for extending habeas jurisdiction to GBC. To begin with, the cases did not address habeas jurisdiction at all and thus never squarely confronted the analysis in Eisentrager. Instead, McNary, for example, addressed whether the United States, is interdicting Haitian refugees and detaining them at GBC, had violated international treaties and agreements, statutes, and executive orders. In fact we have not found any case directly addressing habeas jurisdiction over an alien held at GBC. In addition, both McNary and Sale have been vacated. McNary was vacated as moot by the Supreme Court, see 509 U.S. 918 (1993), and Sale was subsequently vacated by Stipulated Order, see Cuban American Bar Ass'n, 43 F.3d at 1424. More importantly, the analysis in Sale has also been expressly rejected by the Eleventh Circuit. See id. at 1425 ("The district court here erred in [relying on Sale and] concluding that Guantanamo Bay was a 'United States territory.' We disagree that 'control and jurisdiction' is equivalent to sovereignty.") (citation omitted). Finally, to the extent the Second Circuit in McNary relied on the theory that GBC was within the "special maritime and territorial jurisdiction" of the United States under 18 U.S.C. § 7, it is particularly weak authority for habeas jurisdiction here. Section 7 of Title 18 defines places or circumstances where certain criminal laws of the United States shall apply to proscribe conduct. 18 U.S.C. § 7 (1994). The mere fact that U.S. criminal law applies, however, does not bring a place3 within the territorial jurisdiction of a federal district court. As the Supreme Court explained in Vermilya-Brown, a nation may extend its statutes to regulate conduct "on areas under the control, though not within the territorial jurisdiction or sovereignty, of the nation enacting the legislation." 335 U.S. at 381. Laws are frequently applied extyraterritorially to conduct occurring outside a nation's territorial jurisdiction, but6 the mere application of law in such a case does not alter the territorial jurisdiction of the courts or their power to grant the writ of habeas corpus. Indeed, the venue provision for cases arising under the special maritime and territorial jurisdiction of the United States expresslyi acknowledges this distinction. It sets out the venue for crimes that occur "out of the jurisdiction of any particular State or district." 18 U.S.C. § 3238 (1994).
In addition, the Second Circuit has subsequently repudiated the cursory analysis in McNary, which essentially assumed that 18 U.S.C. § 7 applied to GBC. Instead, the Second Circuit has held that the statute has no extraterritorial application. See United States v. Gatlin, 216 F.3d 207, 214 (2nd Cir. 2000). After holding that § 7 had no territorial application for the case before it, the Gatlin Court noted that "the United States base at Guantanamo Bay is technically outside the territorial boundaries of the United States" and declined to express a view on "whether our dictum in McNary was correct." Id. at 214 n.8. [6] McNary's reliance on 18 U.S.C. § 7 to demonstrate a form of "jurisdiction" over GBC is thus particularly unreliable authority here.
Fourth, and perhaps most importantly, a federal district court ought to be reluctant to extend habeas jurisdiction to GBC, when not clearly called for by statute, if doing so would interfere with matters solely within the discretion of the political branches of government. Detention and trial of al Qaeda and Taliban members is undertaken pursuant to the President's Commander in Chief and foreign affairs powers. Without a clear statement from Congress extending jurisdiction to GBC, a court should defer to the executive branch's activities and decisions prosecuting the war in Afghanistan. [7]
III.
You have also asked us about the potential legal exposure if a detainee successfully convinces a federal district court to exercise habeas jurisdiction. There is little doubt that such a result could interfere with the operation of the system that has been developed to address the detainment and trial of enemy aliens. First, a habeas petition would allow a detainee to challenge the legality of his status and treatment under international treaties, such as the Geneva Conventions and the International Convenant on Civil and Political Rights. See 28 U.S.C. § 2241(c)(4). Thus, a court could review, in part, the question whether and what international law norms may or may not apply to the conduct of the war in Afghanistan, both by the United States and its enemies. Second, a detainee could challenge the use of military commissions and the validity of any charges brought as violation of the laws of war under both international and domestic law. See 28 U.S.C. § 2241(c)(3). Third, although the Supreme Court in Ex parte Quirin, 317 U.S. 1 (1942) foreclosed habeas review of the procedures used by military commissions, a petitioner could argue that subsequent developments in the law of habeas corpus require the federal courts to review the constitutionality of military commission procedures today. Fourth, a petitioner might even be able to question the constitutional authority of the President to use force in Afghanistan and the legality of Congress's statutory authorization in place of a declaration of war.
Finally, you have asked about the rights that an enemy alien habeas petitioner would enjoy as a litigant in federal court, assuming that the court has found jurisdiction to exist. We are aware of no basis on which a federal court would grant different litigant rights to a habeas petitioner simply because he is an enemy alien, other than to deny him habeas jurisdiction in the first place.
For the foregoing reasons, we conclude that a district court cannot properly entertain an application for a writ of habeas corpus by an enemy alien detained at Guantanamo Bay Naval Base, Cuba. Because the issue has not yet been definitively resolved by the courts, however, we caution that there is some possibility that a district court would entertain such an application.
Please let us know if we can be of any further assistance.
______________
Notes:
1. See also Johnson v. Eisentrager, 339 U.S. 763, 768 (1950) ("We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction.").
2. See Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 2d § 4268.1 (1988 & Supp. 2001). Courts have held that U.S. citizens held abroad, and therefore outside the territorial jurisdiction of any federal district court, are nevertheless entitled to seek habeas relief. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 498 (1973) ("[N]othing more [is required] than that the court issuing the writ have jurisdiction over the custodian ... Where American citizens confirmed overseas (and thus outside the territory of any district court) have sought relief in habeas corpus, we have held, if only implicitly, that the petitioners' absence from the district does not present a jurisdictional obstacle to the consideration of the claqim." (emphasis added); Konnell v. Warner, 356 F. Supp. 779, 780-81 (D. Haw. 1973) ("Petitioner, a member of the United States Navy, is now on the South China Seas aboard the aircraft carrier U.S.S. Enterprise ... [but his] physical absence from the territorial jurisdiction of this district court does not per se bar this court's jurisdiction over his [habeas] petition."). As this memorandum explains, however, under Eisentrager different rules apply to enemy aliens held outside the United States.
3. Further conditions were imposed in a subsequent agreement, among them a promise from the United States not to permit any commercial enterprise to operate on the base. See Lease of Certain Areas for Naval Coaling Stations, July 2, 1903, U.S.-Cuba, T.S. No. 426, 6 Bevans 1120. The Lease Agreement does not state a term for the lease, and it was continued by a subsequent agreement stating that it would continue "[u]ntil the two contracting parties agree to the modification or abrogation of the stipulations." Treaty between the United States and Cuba defining their relations, May 29,1 034, U.S.-Cuba, art III. 48 Stat. 1682, 1683.
4. For your further information, we have attached a memorandum prepared by this office based on earlier research concerning potential habeas jurisdiction for detainees held at Midway, Wake and Tinian, which have also been considered as possible detention sites.
5. We note that in one statute, Congress has expressly included GBC within a reference to U.S. territories or possessions. In extending the provisions of the Longshore and Harbor Workers' Compensation Act to military bases, section 1651(a) of Title 42, United States Code, provides that the terms of that Act shall apply "upon any lands occupied or used by the United States for military or naval purposes in any Territory or possession outside the continental United States (including the United States Naval Operating Base, Guantanamo Bay, Cuba; and the Canal Zone." See also 42 U.S.C. § 1701(b)(1) (similar provision). By specifically including GBC within the term "Territory or possession" for purposes of extending a particular statutory scheme to military bases Congress in no way undermined the general proposition that GBC is not part of the sovereign territory of the United States. Part of the purpose of the provision was to extend the protection of the Longshore and Harbor Workers' Compensation Act even to bases in foreign nations, and the specific inclusion of GBC in one subsection of the provision cannot be understood as a general statement of the status of the base as a U.S. "possession."
6. Although the Second Circuit has held that 18 U.S.C. § 7 does not apply extraterritorially, we caution against relying too heavily on that rationale. This office has opined that GBC is within the special maritime and territorial jurisdiction of the United States under that provision. See Installation of Slot Machines on U.S. Naval Base, Guantanamo Bay, 6 Op. O.L.C. 236 (1982). We do not believe it is necessary to revisit that opinion here because, as outlined in text, whether or not GBC comes within 18 U.S.C. § 7 is irrelevant for the question of habeas jurisdiction. In addition, we note that criminal prosecutions have been brought on the assumption that 18 U.S.C. § 7 applies to GBC, although the issue does not appear to have been litigated. See, e.g., United States v. Lee, 906 F.2d. 117, 117 & n.1 (1990).
7. This point draws further support from the fact that, where Congress has intended to include GBC in any provisions extending the reach of U.S. law, it has done so expressly. See, e.g., 42 U.S.C. § 1651(a)(2). Congress has shown that it will be express about extending U.S. law to GBC when it intends that result. Particularly where a judicial construction extending jurisdiction or the substantive reach of U.S. law would potentially interfere with the President's foreign affairs and commander-in-chief powers, such a clear statement should be required.
U.S. Department of Justice
Office of the Legal Counsel
Office of the Deputy Assistant Attorney General
Washington, D.C. 20530
December 28, 2001
MEMORANDUM FOR WILLIAM J. HAYNES, II
GENERAL COUNSEL, DEPARTMENT OF DEFENSE
FROM: Patrick F. Philbin
Deputy Assistant Attorney General
John C. Yoo
Deputy Assistant Attorney General
RE: Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba
This memorandum addresses the question whether a federal district court would properly have jurisdiction to entertain a petition for a writ of habeas corpus filed on behalf of an alien detained at the U.S. naval base at Guantanamo Bay, Cuba ("GBC"). This question has arisen because of proposals to detain al Qaeda and Taliban members at GBC pending possible trial by military commission. If a federal district court were to take jurisdiction over a habeas petition, it could review the constitutionality of the detention and theuse of a military commission, the application of certain treaty provisions, and perhaps even the legal status of al Qaeda and Taliban members.
We conclude that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at GBC. Nonetheless, we cannot say with absolute certainty that any such petition would be dismissed for lack of jurisdiction. A detainee could make a non-frivolous argument that jurisdiction does exist over aliens detained at GBC, and we have found no decisions that clearly foreclose the existence of habeas jurisdiction there. On the other hand, it does not appear than any federal court has allowed a habeas petition to proceed from GBC, either. While we believe that the correct answer is that federal courts lack jurisdiction over habeas petitions filed by alien detainees held outside the sovereign territory of the United States, there remains some litigation risk that a district court might reach the opposite result.
I.
The basis for denying jurisdiction to entertain a habeas petition filed by an alien held at GBC rests on Johnson v. Eisentrager, 339 U.S. 763 (1950). In that case, the Supreme Court held that federal courts did not have authority to entertain an application for habeas relief filed by an enemy alien who had been seized and held at all relevant times outside the territory of the United States. See id. at 768-78. Eisentrager involved several German soldiers who had continued to aid the Japanese in China after Germany had surrendered in April 1945. They were seized, tried by military commission in Nanking, China and subsequently imprisoned in Germany. From there, they filed an application for habeas corpus in the District Court for the District of Columbia, naming as respondents the Secretary of Defense, Secretary of the Army, and the Joint Chiefs of Staff. Id. at 766-67. The Court concluded that the federal courts were without power to grant habeas relief because the plaintiffs were beyond the territorial sovereignty of the United States and outside the territorial jurisdiction of any U.S. court. As the Court explained:
We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.
Id. at 777-78. [1]
The Court seemed to acknowledge tacitly that the habeas application could fall within the literal terms of the federal statute defining the power of federal courts to grant habeas corpus relief. Then, as now, the statute did not expressly restrict the jurisdiction of courts to issue the writ solely to situations where a prisoner was held within the territorial jurisdiction of the court. Instead, the statute states simply that courts may grant the writ "within their respective jurisdictions." See 28 U.S.C. § 2241 (1994) ("Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions."). It has been held sufficient for jurisdiction to grant the writ if a person with authority over the custody of the prisoner is within the jurisdiction of the court. [2] The Supreme Court assumed that, "while [the] prisoners are in immediate physical custody of an officer or officers not parties to the proceeding, respondents named in the petition have lawful authority to effect their release." 339 U.S. at 766-67. The Court, however, reasoned that the answer to the court's power did not lie in the statute. Rather, it explained that, for the question before it, "answers stem directly from fundamentals," and that they "cannot be found by casual reference to statutes or cases. 339 U.S. at 468. In analyzing those "fundamentals" the Court concluded that an alien held outside the United States cannot seek the writ of habeas corpus.
The analysis from Eisentrager should apply to bar any habeas application filed by an alien held at GBC. In the critical passage that most nearly summarizes the Court's holding, the Eisentrager Court based its conclusion on the fact that the prisoners were seized, tried, and held in territory that was outside the sovereignty of the United States and outside the territorial jurisdiction of any court of the United States. We do not believe that the Court intended to establish a two-part test, distinguishing between "sovereign" territory and territorial "jurisdiction." Instead, we believe that the Court used the latter term interchangeably with the former to explain why an alien has no right to a writ of habeas corpus when held outside the sovereign territory of the United States. The same reasoning applies to GBC because it is outside the sovereign territory of the United States.
The United States holds GBC under a lease agreement with Cuba entered into in 1903. See Agreement Between the United States of American and the Republic of Cuba for the Lease to the United States of Lands in Cuba for Coaling and Naval Stations, Feb. 16-23, 1903, U.S.-Cuba T.S. No. 418 6 Bevans 1113 ("Lease Agreement"). [3] That agreement expressly provides that "the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the" lands and waters subject to the lease. Id. art. III. Although the agreement goes on to state that the United States "shall exercise complete jurisdiction and control over and within" the leased areas, it specifically reserves sovereignty to Cuba. Id.
The terms of the Lease Agreement are thus definitive on the question of sovereignty and should not be subject to question in the courts. The Supreme Court has acknowledged that "the determination of sovereignty over an area is for the legislative and executive departments" -- that is, it is not a question on which the courts should second-guess the political branches. Vermilya-Brown Co. v. Connell, 335 U.S. 377, 380 (1948). Indeed, in Vermilya-Brown all nine members of the Supreme Court observed that the United States has no sovereignty over GBC. The issue in Vermilya-Brown Co. v. Connell, was whether the Fair Labor Standards Act ("FLSA") applied to a United States military base in Bermuda. Five members held that the FLSA applied to "foreign territory under lease for bases," id. at 390, while the four dissenters concluded that theFLSA applied only in "any Territory or possession of the United States," id. (Jackson, J., dissenting). All nine believed, however, that neither Bermuda nor GBC was subject to the sovereignty of the United States.
At the time when Vermilya-Brown was decided, the United States was operating military bases in Bermuda pursuant to a 99-year leasehold. That lease ended in September 1, 1995, when both bases were closed and the land returned to the Government of Bermuda. See id. at 378; see also http://www.virtualsources.com/Countries ... ermuda.htm. Based on the terms of that leasehold, the majority noted the state Department's position that [t]he arrangements under which the [United States'] leased bases [of Bermuda] were acquired from Great Britain did not and were not intended to transfer sovereignty over the leased areas from Great Britain to the United States." 335 U.S. at 380. Accordingly, those five justices concluded "that the leased area is under the sovereignty of Great Britain and that it is not territory of the United States in a political sense, that is, a part of its national domain." Id. at 380-81. Moreover, the majority specifically stated that the United States also has "a lease from the Republic of Cuba of an area at Guantanamo Bay for a coaling or naval station," and that "[t]he United States was granted by the Cuban lease substantially the same rights as it has in the Bermuda lease." Id. at 383 & n.5 (quoting 1903 US-Cuba agreement).
Similarly, the dissent contended that "Bermuda and like bases are not ... our possessions." Id. at 392 (Jackson, J., dissenting). "Guantanamo Naval Base, ... a leased base in Cuba ... has been ruled by the ATtorney General not to be a possession; it has not been listed by the State Department as among our 'non-self-governing territories,' and the Administrator of the very Act before us has not listed it among our possessions." Id. at 405 (Jackson, J., dissenting) (footnotes omitted). The disagreement in the case was not whether the United States exercised sovereignty over GBC -- all agreed that the United States did not -- but rather whether the FLSA applies extraterritorially to include U.S. military bases such as those in Bermuda and GBC. The Eisentrager analysis turns, of course, on whether the United States exercises sovereignty over a particular territory.
The Vermilya-Brown decision does not stand alone in concluding that the United States does not exercise sovereignty over GBC. More recently, in 1995, the Eleventh Circuit similarly relied on the terms of the Lease Agreement to conclude that GBC is not within the sovereign territory of the United States. See Cuban American Bar Ass'n. Inc v. Christopher, 43 F.3d 1412, 1425 (11th Cir. 1995) ("The district court here erred in concluding that Guantanamo Gay was a 'United States territory.' We disagree that 'control and jurisdiction' is equivalent to sovereignty.") (citations omitted); id. (rejecting "the argument that our leased military bases abroad which continue under the sovereignty of foreign nations, hostile or friendly, are 'functional[ly] equiavalent' to being land borders orports of entry of the United States or otherwise within the United States") (alteration in original). And the District of Connecticut has likewise held that "sovereignty over the Guantanamo Bay does not rest wtih the United States." Bird v. United States, 923 F.Supp. 338, 343 (D. Conn. 1996). See also id. ("Because the 1903 Lease of Lands Agreement clearly establishes Cuba as the de jure sovereign over Guantanamo Bay, this Court need not speculate whether the United States is the de facto sovereign over the area.").
The position of GBC stands in sharp contrast to the status of the Philippine Islands in cases arising out of World War II. General Yamashita was tried in the Philippines by a U.S. military commission from October to December of 1945, and the Supreme Court chose to exercise habeas jurisdiction in reviewing the commission's decision. See Application of Yamashita, 327 U.S. 1, 5 (1946). At that time, however, the Philippine Islands was an insular possession, and not a mere U.S. leasehold interest. See Eisentrager, 339 U.S. at 780 ("By reason of our sovereignty at that time over these insular possessions, Yamashita stood much as did Quirin before American courts. Yamashita's offenses were committed on our territory, he was tried within the jurisdiction of our insular courts and he was imprisoned within territory of the United States."). The United States exercised sovereignty over the Philippines until July 4, 1946, see generally 48 U.S.C. ch. 5 (1994), at which time the Philippines became an independent sovereign. The United States retained a military base there -- and it was that condition which the Vermilya-Brown Court compared to Bermuda and GBC. See Vermilya-Brown, 335 U.S. at 384 & n.7. The Court's treatment of the Philippines after July 4, 1946, thus affirms our conclusion that the United States interest in GBC today is markedly different, for Eisentrager purposes, than that in the Philippines prior to July 4, 1946.
GBC is also outside the "territorial jurisdiction of any court of hte United States." Eisentrager, 339 U.S. 778. The territory of ever federal district court is defined by statute. See 28 U.S.C. §§ 81-131 (1994); 48 U.S.C. §§ 1424, 1424b, 1821-1826 (1994). GBC is not included within the territory defined for any district. In contrast, other island bases that are considered territories or possessions of the United States are expressly defined within the jurisdiction of specific district courts, even if they are retained largely for military use. See, e.g., 28 U.S.C. § 91 (defining the District of Hawaii to include "the Midway Islands, Wake Island, Johnston Island, Kingman Reef," and other islands). [4]
Finally, the executive branch has repeatedly taken the position under various statutes that GBC is neither part of the United States nor a possession or territory of the United States. For example, this Office has opined that GBC is not part of the "United States' for purposes of the Immigration and Naturalization Act. See Memorandum for the Associate Attorney General, from Larry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Status of Guantanamo Bay (Oct. 27, 1981). Similarly, in 1929, the Attorney General opined that GBC was not a "possession" of the United STates within the meaning of certain tariff acts. See Customs Duties -- Goods Brought into United States Naval Station at Guantanamo Bay, Cuba, 35 Op. Atty Gen. 536 (1929). GBC was "a mere governmental outpost beyond our borders" and "a place subject to the use, occupation and control of the United States," without being part of sovereign territory. Id. at 541, 540. Although neither of these opinions is directly on point here, because each addresses the status of GBC under a particular statutory definition, they demonstrate that the United States has consistently taken the position that GBC remains foreign territory, not subject to U.S. sovereignty. [5]
II.
For the reasons outlined above, we believe that the rationale for holding that there is no jurisdiction to entertain a habeas petition from an alien held at GBC is very strong and is the correct result under Eisentrager. Nevertheless, we caution that there is a potential ground for uncertainty arising from an arguable imprecision in the Supreme Court's language in Eisentrager. As noted above, in a critical passage the Court stated that habeas urisdiction was not available because the aliens were not within "territory over which the United States is sovereign." 339 U.S. at 778. In the very same sentence, however, the Court also stated that habeas jurisdiction did not exist because the events and detention occurred outside "the territorial jurisdiction" of any federal court. Id. If an alien detainee is both outside the United States' sovereign territory and outside the territorial jurisdiction of a federal court, then it is clear that no habeas urisdiction exists. We have explained above that we believe GBC meets those conditions. A non-frivolous argument might be constructed, however, that GBC, while not part of sovereign territory of the United States, is within the territorial jurisdiction of a federal court. In that scenario, the application of Eisentrager might not be as clear. This is because "sovereignty" over territory and "jurisdiction" over territory could mean different things. A nation, for example, can retain its sovereignty over its territory, yet at the same time allow another nation to exercise limited jurisdiction within it.
It might be argued that the difference in language in Eisentrager must be given meaning, which can only be done if there is a difference between "sovereignty" and "jurisdiction." A court could find that the U.S.-Cuba lease agreement lends itself rather well to this distinction, since it makes clear that the United States exercises "complete jurisdiction and control" over GBC, even though Cuba retains "sovereignty." Lease Agreement, 6 Bevans 1114. Although Eisentrager seems to permit aliens to bring habeas petitions onlyo in areas within the sovereign control of the United States, which by the 1903 agreement does not extend to GBC, a court could find that Eisentrager's mention of territorial jurisdiction does not preclude habeas jurisdiction at GBC.
A district court also might find support in some cases, although (as explained below) we believe that these precedents are not good law. In Haitian Centers Council, Inc. v. McNary, 969 F.2d 1326 (2nd Cir. 1992), the Second Circuit stated that "Guantanamo Bay is a military installation that is subject to the exclusive control and jurisdiction of the United States." Id. at 1342. As a result of the United States' exclusive control, the court concluded that some constitutional rights applied to Haitian refugees held at GBC and that an interest group could file for a preliminary injunction in federal court in New York to vindicate those rights. The court also relied in part on the fact that certain U.S. criminal laws apparently applied to GBC under the definition of the United States' "special maritime and territorial jurisdiction" in section 7 of title 18, United States Code. See id. at 1342. That placed GBC, at least in some sense, under U.S. "jurisdiction." Similarly, in Haitian Centers Council, Inc. v. Sale, 823 F. Supp. 1028 (E.D.N.Y. 1993), the district court relied on McNary to hold that, because "Guantanamo Bay Naval Base ... is under the complete control and jurisdiction of the United States government," aliens held there must be granted some constitutional protections. Id. at 1040.
For a number of reasons, however, we believe that a federal district court would not accept these arguments. First, the best reading of Eisentrager indicates that the Court was only permitting habeas jurisdiction within the sovereign territory of the United States, which does not include GBC. Second, no federal statutes include GBC wiothin the territorial jurisdiction of any federal district court. The fact that the United States can exercise some "jurisdiction" and "control" over the base is not the relevant factor for the purposes of the analysis in Eisentrager. Presumably the United States similarly exercised considerable "jurisdiction" and "control" over the Landsberg Prison, which was under the command of an American Army general at the time, where the applicants in Eisentrager were held. That, however, was not deemed relevant to the Court's analysis.
Third, the McNary and Sale cases cited above are not persuasive authority for extending habeas jurisdiction to GBC. To begin with, the cases did not address habeas jurisdiction at all and thus never squarely confronted the analysis in Eisentrager. Instead, McNary, for example, addressed whether the United States, is interdicting Haitian refugees and detaining them at GBC, had violated international treaties and agreements, statutes, and executive orders. In fact we have not found any case directly addressing habeas jurisdiction over an alien held at GBC. In addition, both McNary and Sale have been vacated. McNary was vacated as moot by the Supreme Court, see 509 U.S. 918 (1993), and Sale was subsequently vacated by Stipulated Order, see Cuban American Bar Ass'n, 43 F.3d at 1424. More importantly, the analysis in Sale has also been expressly rejected by the Eleventh Circuit. See id. at 1425 ("The district court here erred in [relying on Sale and] concluding that Guantanamo Bay was a 'United States territory.' We disagree that 'control and jurisdiction' is equivalent to sovereignty.") (citation omitted). Finally, to the extent the Second Circuit in McNary relied on the theory that GBC was within the "special maritime and territorial jurisdiction" of the United States under 18 U.S.C. § 7, it is particularly weak authority for habeas jurisdiction here. Section 7 of Title 18 defines places or circumstances where certain criminal laws of the United States shall apply to proscribe conduct. 18 U.S.C. § 7 (1994). The mere fact that U.S. criminal law applies, however, does not bring a place3 within the territorial jurisdiction of a federal district court. As the Supreme Court explained in Vermilya-Brown, a nation may extend its statutes to regulate conduct "on areas under the control, though not within the territorial jurisdiction or sovereignty, of the nation enacting the legislation." 335 U.S. at 381. Laws are frequently applied extyraterritorially to conduct occurring outside a nation's territorial jurisdiction, but6 the mere application of law in such a case does not alter the territorial jurisdiction of the courts or their power to grant the writ of habeas corpus. Indeed, the venue provision for cases arising under the special maritime and territorial jurisdiction of the United States expresslyi acknowledges this distinction. It sets out the venue for crimes that occur "out of the jurisdiction of any particular State or district." 18 U.S.C. § 3238 (1994).
In addition, the Second Circuit has subsequently repudiated the cursory analysis in McNary, which essentially assumed that 18 U.S.C. § 7 applied to GBC. Instead, the Second Circuit has held that the statute has no extraterritorial application. See United States v. Gatlin, 216 F.3d 207, 214 (2nd Cir. 2000). After holding that § 7 had no territorial application for the case before it, the Gatlin Court noted that "the United States base at Guantanamo Bay is technically outside the territorial boundaries of the United States" and declined to express a view on "whether our dictum in McNary was correct." Id. at 214 n.8. [6] McNary's reliance on 18 U.S.C. § 7 to demonstrate a form of "jurisdiction" over GBC is thus particularly unreliable authority here.
Fourth, and perhaps most importantly, a federal district court ought to be reluctant to extend habeas jurisdiction to GBC, when not clearly called for by statute, if doing so would interfere with matters solely within the discretion of the political branches of government. Detention and trial of al Qaeda and Taliban members is undertaken pursuant to the President's Commander in Chief and foreign affairs powers. Without a clear statement from Congress extending jurisdiction to GBC, a court should defer to the executive branch's activities and decisions prosecuting the war in Afghanistan. [7]
III.
You have also asked us about the potential legal exposure if a detainee successfully convinces a federal district court to exercise habeas jurisdiction. There is little doubt that such a result could interfere with the operation of the system that has been developed to address the detainment and trial of enemy aliens. First, a habeas petition would allow a detainee to challenge the legality of his status and treatment under international treaties, such as the Geneva Conventions and the International Convenant on Civil and Political Rights. See 28 U.S.C. § 2241(c)(4). Thus, a court could review, in part, the question whether and what international law norms may or may not apply to the conduct of the war in Afghanistan, both by the United States and its enemies. Second, a detainee could challenge the use of military commissions and the validity of any charges brought as violation of the laws of war under both international and domestic law. See 28 U.S.C. § 2241(c)(3). Third, although the Supreme Court in Ex parte Quirin, 317 U.S. 1 (1942) foreclosed habeas review of the procedures used by military commissions, a petitioner could argue that subsequent developments in the law of habeas corpus require the federal courts to review the constitutionality of military commission procedures today. Fourth, a petitioner might even be able to question the constitutional authority of the President to use force in Afghanistan and the legality of Congress's statutory authorization in place of a declaration of war.
Finally, you have asked about the rights that an enemy alien habeas petitioner would enjoy as a litigant in federal court, assuming that the court has found jurisdiction to exist. We are aware of no basis on which a federal court would grant different litigant rights to a habeas petitioner simply because he is an enemy alien, other than to deny him habeas jurisdiction in the first place.
For the foregoing reasons, we conclude that a district court cannot properly entertain an application for a writ of habeas corpus by an enemy alien detained at Guantanamo Bay Naval Base, Cuba. Because the issue has not yet been definitively resolved by the courts, however, we caution that there is some possibility that a district court would entertain such an application.
Please let us know if we can be of any further assistance.
______________
Notes:
1. See also Johnson v. Eisentrager, 339 U.S. 763, 768 (1950) ("We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction.").
2. See Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 2d § 4268.1 (1988 & Supp. 2001). Courts have held that U.S. citizens held abroad, and therefore outside the territorial jurisdiction of any federal district court, are nevertheless entitled to seek habeas relief. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 498 (1973) ("[N]othing more [is required] than that the court issuing the writ have jurisdiction over the custodian ... Where American citizens confirmed overseas (and thus outside the territory of any district court) have sought relief in habeas corpus, we have held, if only implicitly, that the petitioners' absence from the district does not present a jurisdictional obstacle to the consideration of the claqim." (emphasis added); Konnell v. Warner, 356 F. Supp. 779, 780-81 (D. Haw. 1973) ("Petitioner, a member of the United States Navy, is now on the South China Seas aboard the aircraft carrier U.S.S. Enterprise ... [but his] physical absence from the territorial jurisdiction of this district court does not per se bar this court's jurisdiction over his [habeas] petition."). As this memorandum explains, however, under Eisentrager different rules apply to enemy aliens held outside the United States.
3. Further conditions were imposed in a subsequent agreement, among them a promise from the United States not to permit any commercial enterprise to operate on the base. See Lease of Certain Areas for Naval Coaling Stations, July 2, 1903, U.S.-Cuba, T.S. No. 426, 6 Bevans 1120. The Lease Agreement does not state a term for the lease, and it was continued by a subsequent agreement stating that it would continue "[u]ntil the two contracting parties agree to the modification or abrogation of the stipulations." Treaty between the United States and Cuba defining their relations, May 29,1 034, U.S.-Cuba, art III. 48 Stat. 1682, 1683.
4. For your further information, we have attached a memorandum prepared by this office based on earlier research concerning potential habeas jurisdiction for detainees held at Midway, Wake and Tinian, which have also been considered as possible detention sites.
5. We note that in one statute, Congress has expressly included GBC within a reference to U.S. territories or possessions. In extending the provisions of the Longshore and Harbor Workers' Compensation Act to military bases, section 1651(a) of Title 42, United States Code, provides that the terms of that Act shall apply "upon any lands occupied or used by the United States for military or naval purposes in any Territory or possession outside the continental United States (including the United States Naval Operating Base, Guantanamo Bay, Cuba; and the Canal Zone." See also 42 U.S.C. § 1701(b)(1) (similar provision). By specifically including GBC within the term "Territory or possession" for purposes of extending a particular statutory scheme to military bases Congress in no way undermined the general proposition that GBC is not part of the sovereign territory of the United States. Part of the purpose of the provision was to extend the protection of the Longshore and Harbor Workers' Compensation Act even to bases in foreign nations, and the specific inclusion of GBC in one subsection of the provision cannot be understood as a general statement of the status of the base as a U.S. "possession."
6. Although the Second Circuit has held that 18 U.S.C. § 7 does not apply extraterritorially, we caution against relying too heavily on that rationale. This office has opined that GBC is within the special maritime and territorial jurisdiction of the United States under that provision. See Installation of Slot Machines on U.S. Naval Base, Guantanamo Bay, 6 Op. O.L.C. 236 (1982). We do not believe it is necessary to revisit that opinion here because, as outlined in text, whether or not GBC comes within 18 U.S.C. § 7 is irrelevant for the question of habeas jurisdiction. In addition, we note that criminal prosecutions have been brought on the assumption that 18 U.S.C. § 7 applies to GBC, although the issue does not appear to have been litigated. See, e.g., United States v. Lee, 906 F.2d. 117, 117 & n.1 (1990).
7. This point draws further support from the fact that, where Congress has intended to include GBC in any provisions extending the reach of U.S. law, it has done so expressly. See, e.g., 42 U.S.C. § 1651(a)(2). Congress has shown that it will be express about extending U.S. law to GBC when it intends that result. Particularly where a judicial construction extending jurisdiction or the substantive reach of U.S. law would potentially interfere with the President's foreign affairs and commander-in-chief powers, such a clear statement should be required.
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PART 1 OF 3
MEMO 4
U.S. Department of Justice
Office of the Legal Counsel
Office of the Deputy Assistant Attorney General
Washington, D.C. 20530
January 9, 2002
MEMORANDUM FOR WILLIAM J. HAYNES II
GENERAL COUNSEL, DEPARTMENT OF DEFENSE
FROM: John Yoo
Deputy Assistant Attorney General
Robert J. Delahunty
Special Counsel
RE: Application of Treaties and Laws to al Qaeda and Taliban Detainees
You have asked for our Office's views concerning the effect of international treaties and federal laws on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan. In particular, you have asked whether the laws of armed conflict apply to the conditions of detention and the procedures for trial of members of al Qaeda and the Taliban militia. We conclude that these treaties do not protect members of the al Qaeda organization, which as a non-State actor cannot be a party to the international agreements governing war. We further conclude that that these treaties do not apply to the Taliban militia. This memorandum expresses no view as to whether the President should decide, as a matter of policy, that the U.S. Armed Forces should adhere to the standards of conduct in those treaties with respect to the treatment of prisoners.
We believe it most useful to structure the analysis of these questions by focusing on the War Crimes Act, 18 U.S.C. § 2441 (Supp. III 1997) ("WCA"). The WCA directly incorporates several provisions of international treaties governing the laws of war into the federal criminal code. Part I of this memorandum describes the WCA and teh most relevant treaties taht it incorporates: the four 1949 Geneva Conventions, which generally regulate the treatment of n on-combatants, such as prisoners of war ("POWs"), the injured and sick, and civilians. [1]
Part II examines whether al Qaeda detainees can claim the protections of these agreements. Al Qaeda is merely a violent political movement or organization and not a nation-state. As a result, it is ineligible to be a signatory to any treaty. Because of the novel nature of this conflict, moreover, we do not believe that al Qaeda would be included in non-international forms of armed conflict to which some provisions of the Geneva Conventions might apply. Therefore, neither the Geneva Conventions nor the WCA regulate the detention of al Qaeda prisoners captured during the Afghanistan conflict.
Part III discuses whether the same treaty provisions, as incorporated through the WCA apply to the treatment of captured members of the Taliban militia. We believe that the Geneva Conventions do not apply for several reasons. First, the Taliban was not a government and Afghanistan was not – even prior to the beginning of the present conflict – a functioning State during the period in which they engaged in hostilities against the United States and its allies. Afghanistan’s status as a failed state is ground alone to find that members of the Taliban militia are not entitled to enemy POW status under the Geneva Conventions. Further, it is clear that the President has the constitutional authority to suspend our treaties with Afghanistan pending the restoration of a legitimate government capable of performing Afghanistan’s treaty obligations. Second, it appears from the public evidence that the Taliban militia may have been so intertwined with al Qaeda as to be functionally indistinguishable from it. To the extent that the Taliban militia was more akin to a non-governmental organization that used military force to pursue its religious and political ideology than a functioning government, its members would be on the same legal footing as al Qaeda.
In part IV, we address the question whether any customary international law of armed conflict may apply to the al Qaeda or Taliban militia members detained during the course of the Afghanistan Conflict. We conclude that customary international law, whatever its source and content, does not bind the President or restrict the actions of the United States military, because it does not constitute federal law recognized under the Supremacy Clause of the Constitution. The President, however, has the constitutional authority as Commander in Chief to interpret and apply the customary or common laws of war in such a way that they would extend to the conduct of members of both al Qaeda and the Taliban, and also to the conduct of the U.S. Armed Forces towards members of those groups taken as prisoners in Afghanistan.
I. Background and Overview of the War Crimes Act and the Geneva Conventions
It is our understanding that your department is considering two basic plans regarding the treatment of members of al Qaeda and the Taliban militia detained during the Afghanistan conflict. First, the Defense Department intends to make available a facility at the U.S. Navy base at Guantanamo Bay, Cuba, for the long-term detention of these individuals, who have come under our control either through capture by our military or transfer from our allies in Afghanistan. We have discussed in a separate memorandum the federal jurisdiction issues that might arise concerning Guantanamo Bay. [2] Second, your department is developing procedures to implement the President’s Military Order of November 13, 2001, which establishes military commissions for the trial of violations of the laws of war committed by non-U.S. citizens. [3] The question has arisen whether the Geneva Conventions, or other relevant international treaties or federal laws, regulate these proposed policies.
We believe that the WCA provides a useful starting point for our analysis of the application of the Geneva Conventions to the treatment of detainees captured in the Afghanistan theater of operations. [4] Section 2441 of Title 18 renders certain acts punishable as "war crimes." The statute’s definition of that term incorporates, by reference, certain treaties or treaty provisions relating to the laws of war, including the Geneva Conventions.
A. Section 2441: An Overview
Section 2441 reads in full as follows:
War crimes
(a) Offense -- Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(b) Circumstances -- The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).
(c) Definition -- As used in this section "war crime" means any conduct --
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international convention signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.
18 U.S.C. § 2441.
Section 2441 lists four categories of war crimes. First, it criminalizes "grave breaches" of the Geneva Conventions, which are defined by treaty and will be discussed below. Second, it makes illegal conduct prohibited by articles 23, 25, 27, and 28 of the Annex to the Hague Convention IV. Third, it criminalizes violations of what is known as "common" Article 3, which is an identical provision common to all four of the Geneva Conventions. Fourth, it criminalizes conduct prohibited by certain other laws of war treaties, once the United States joins them. A House Report states that the original legislation "carries out the international obligations of the United States under the Geneva Conventions of 1949 to provide criminal penalties for certain war crimes." H.R. Rep. No. 104-698 at 1 (1996), reprinted in 1996 U.S.C.C.A.N. at 2166, 2166. each of those four conventions includes a clause relating to legislative implementation and to criminal punishment. [5]
In enacting section 2441, Congress also sought to fill certain perceived gaps in the coverage of federal criminal law. The main gaps were thought to be of two kinds: subject matter jurisdiction and personal jurisdiction. First, Congress found that "[t]here are major gaps in the prosecutability of individuals under federal criminal law for war crimes committed against Americans." H.R. Rep. No. 104-698 at 6, reprinted in 1996 U.S.C.C.A.N. at 2170. [6] Second, Congress found that "[t]he ability to court martial members of our armed services who commit war crimes ends when they leave military service. [Section 2441] would allow fir prosecution even after discharge." Id. at 7, reprinted in 1996 U.S.C.C.A.N. at 2172. [7] Congress considered it important to fill this gap, not only in the interest of the victims of war crimes, but also of the accused. "The Americans prosecuted would have available all the procedural protections of the American justice system. These might be lacking if the United States extradited the individuals to their victims’ home countries for prosecution." Id. [8] Accordingly, Section 2441 criminalizes forms of conduct in which a U.S. national or a member of the Armed Forces may be either a victim or a perpetrator.
B. Grave Breaches of the Geneva Conventions
The Geneva Conventions were approved by a diplomatic conference on August 12, 1949, and remain the agreements to which more States have become parties than any other concerning the laws of war. Convention I deals with the treatment of the wounded and sick in armed forces in the filed; Convention II addresses treatment of the wounded, sick, and shipwrecked in armed forces at sea; Convention III regulates treatment of POWs; Convention IV addresses the treatment of citizens, the Geneva Conventions set the rules for the treatment of the victims of war.
The Geneva Conventions, like treaties generally, structure legal relationships between Nation States, not between Nation States and private, subnational groups or organizations. [9] All four Conventions share the same Article 2, known as "common Article 2." It states:
(Emphasis added)
As incorporated by § 2441(c)(1), the four Geneva Conventions similarly define "grave breaches." Geneva Convention III on POWs defines grave breach as:
Geneva Convention III, art. 130. As mentioned before, the Geneva Conventions require the High Contracting Parties to enact penal legislation to punish anyone who commits or orders a grave breach. See, e.d., id. art. 129. Further, each State party has the obligation to search for and bring to justice (either before its courts or by delivering a suspect to another State party) anyone who commits a grave breach. No State party is permitted to absolve itself or any other nation liability for committing a grave breach.
Thus, the WCA does not criminalize all breaches of the Geneva Conventions. Failure to follow some of the regulations regarding the treatment of POWs, such as difficulty in meeting all of the conditions set forth for POW camp conditions, does not constitute a grave breach within the meaning of Geneva Convention III, art. 130. Only by causing great suffering or serious bodily injury to POWs, killing or torturing them, depriving them of access to a fair trial, or forcing them to serve in the Armed Forces, could the United States actually commit a grave breach. Similarly, unintentional, isolated collateral damage on civilian targets would not constitute a grave breach within the meaning of Geneva Convention IV, art. 147. Article 147 requires that for a grave breach to have occurred, destruction of property must have been done "wantonly" and without military justification, while the killing of injury of civilians must have been "willful."
D. Common Article 3 of the Geneva Conventions
Section 2441 (c)(3) also defines as a war crime conduct that "constitutes a violation of common Article 3" of the Geneva Conventions. Article 3 is a unique provision that governs the conduct of signatories to the Conventions in a particular kind of conflict that is not one between High Contracting Parties to the Conventions. Thus, common Article 3 may require the United States, as a High Contracting Party, to follow certain rules even if other parties to the conflict are not parties to the Conventions. On the other hand, Article 3 requires state parties to follow only certain minimum standards of treatment toward prisoners, civilians, or the sick and wounded, rather than the Conventions as a whole.
Common Article 3 reads in relevant part as follows:
Common article 3 complements common Article 2. Article 2 applies to cases of declared war or of any other armed conflict that may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. [10] Common Article 3, however, covers "armed conflict not of an international character" – a war that does not involve cross-border attacks – that occurs within the territory of one of the High Contracting Parties. There is substantial reason to think that this language refers specifically to a condition of civil war, or a large-scale armed conflict between a State and an armed movement within its own territory.
To begin with Article 3’s text strongly supports the interpretation that it applies to large-scale conflicts between a State and an insurgent group. First, the language at the end of Article 3 states that "[t]he application of the preceding provisions shall not affect the legal status of the Parties to the conflict." This provision was designed to ensure that a Party that observed Article 3 during a civil war would not be understood to have granted the "recognition of the insurgents as an adverse party." Frits Kalshoven, Constraints on the Waging of War 59 (1987). Second, Article 3 is in terms limited to "armed conflict… occurring in the territory of one of the High Contracting Parties" (emphasis added). This limitation makes perfect sense if the Article applies to civil wars, which are fought primarily or solely within the territory of a single state. The limitation makes little sense, however, as applied to a conflict between a State and a transitional terrorist group, which may operate from different territorial bases, some of which might be located in States that are parties to the Conventions and some of which might not be. In such a case, the Conventions would apply to a single armed conflict in some scenes of action but not in others – which seems inexplicable.
This interpretation is supported by commentators. One well-known commentary states that "a non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other, the parties to the conflict are not sovereign States, but the government of a single State in conflict with one or more armed factions within its territory. [11] A legal scholar writing in the same year in which the Conventions were prepared stated that "a conflict not of an international character occurring in the territory of one of the High Contracting Parties… must normally mean a civil war." [12]
Analysis of the background to the adoption of the Geneva Conventions in 1949 confirms our understanding of common Article 3. It appears that the drafters of the Conventions had in mind only the two forms of armed conflict that were regarded as matters of general international concern at the time: armed conflict between Nation States (subject to Article 2), and large-scale civil war within a Nation State (subject to Article 3). To understand the context in which the Geneva Conventions were drafted, it will be helpful to identify three distinct phases in the development of the laws of war.
First, the traditional law of war was based on a stark dichotomy between "belligerency" and "insurgency." The category of "belligerency" applied to armed conflicts between sovereign States (unless there was recognition of belligerency in a civil war), while the category of "insurgency" applied to armed violence breaking out within the territory of a sovereign State. [13] Correspondingly, international law treated two classes of conflict in different ways. Inter-state wars were regulated by a body of international legal rules governing both the conduct of hostilities and the protection of noncombatants. By contrast, there were very few international rules governing civil unrest, for States preferred to regard internal strife as rebellion, mutiny and treason coming within the purview of national criminal law, which precluded any possible intrusion by other States. [14] This was a "clearly sovereignty-oriented" phase of international law. [15]
The second phase began as early as the Spanish Civil war (1936-39) and extended through the time of the drafting of the Geneva Conventions until relatively recently. During this period, State practice began to apply certain general principles of humanitarian law beyond the traditional field of State-to-State conflict to "those internal conflicts that constituted large-scale civil wars." [16] In addition to the Spanish Civil War, events in 1947 during the Civil War between the Communists and the National regime in China illustrated this new tendency. [17] Common Article 3, which was prepared during this second phase, was apparently addressed to armed conflicts akin to the Chinese and Spanish civil wars. As one commentator has described it, Article 3 was designed to restrain governments "in the handling of armed violence directed against them for the express purpose of secession or at securing a change in the government of a State," but even after the adoption of the Conventions it remained "uncertain whether [Article 3] applied to full-scale civil war." [18]
The third phase represents a more complete break than the second with the traditional "State-sovereignty-oriented approach" of international law. This approach gives central place to individual human rights. As a consequence, it blurs the distinction between international and internal armed conflicts, and even that between civil wars and other forms of internal armed conflict. This approach is well illustrated by the ICTY’s decision in Tadic, which appears to take the view that common Article 3 applies to a non-international armed conflicts of any description, and is not limited to civil wars between a State and an insurgent group. In this conception, common Article 3 is not just a complement to common Article 2; rather, it is a catch-all that establishes standards for any and all armed conflicts not included in common Article 2. [19]
Nonetheless, despite this recent trend, we think that such an interpretation of common Article 3 fails to take into account, not only the language of the provision, but also its historical context. First, as we have described above, such a reading is inconsistent with the text of Article 3 itself, which applies only to "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." In conjunction with common Article 2, the text of Article 3 simply does not reach international conflicts where one of the parties is not a Nation State. If we were to read the Geneva Conventions as applying to all forms of armed conflict, we would expect the High Contracting Parties to have used broader language, which the easily could have done. To interpret common Article 3 by expanding its scope well beyond the meaning borne by the text is effectively to amend the Geneva Conventions without approval of the State Parties to the agreements.
Second, as we have discussed, Article 3 was prepared during a period in which the traditional, State-centered view of international law was still dominant and was only just beginning to give way to a human-rights-based approach. Giving due weight to the State practice and doctrinal understanding of the time, it seems to us overwhelmingly likely that an armed conflict between a Nation State and a transitional terrorist organization, or between a Nation State and a failed State harboring and supporting a transitional terrorist organization, could not have been within the contemplation of the drafters of common Article 3. These would have been simply unforeseen and, therefore, not provided for. Indeed, it seems to have been uncertain even a decade after the Conventions were signed whether common Article 3 applied to armed conflicts that were neither international in character nor civil wars but anti-colonialist wars of independence such as those in Algeria and Kenya. See Gerald Irving Draper, The Red Cross Conventions 15 (1957). Further, it is telling that in order to address this unforeseen circumstance, the State Parties to the Geneva Conventions did not attempt to distort the terms of common Article 3 to apply it to cases that did not fit within its terms. Instead, they drafted two new protocols (neither of which the United States has ratified) to adapt the Conventions to the conditions of contemporary hostilities. [20] Accordingly, common Article 3 is best understood not to apply to such armed conflicts.
Third, it appears that in enacting the WCA, Congress did not understand the scope of Article 3 to extend beyond civil wars to all other types of internal armed conflict. As discussed in our review of the legislative history, when extending the WCA to cover violations of common Article 3, the House apparently understood that it was codifying treaty provisions that "forbid atrocities occurring in both civil ward and wars between nations." [21] If congress had embraced a much broader view of common Article 3, and hence of 18 U.S.C. § 2441, we would expect both the statutory text and the legislative history to have included some type of clear statement of congressional intent. The WCA regulates the manner in which the U.S. Armed Forces may conduct military operations against the enemy; as such, it potentially comes into conflict with the President’s Commander in Chief power under Article II of the Constitution. As we have advised others earlier in this conflict, the Commander in Chief power gives the President the plenary authority in determining how best to deploy troops in the field. [22] Any congressional effort to restrict presidential authority by subjecting the conduct of the U.S. Armed Forces to a broad construction of the Geneva Convention, one that is not clearly borne by its text, would represent a possible infringement on presidential discretion to direct the military. We believe that Congress must state explicitly its intention to take the constitutionally dubious step of restricting the President’s plenary power over military operations (including the treatment of prisoners), and that, unless Congress clearly demonstrates such an intent, the WCA must be read to avoid such constitutional problems. [23] As congress has not signaled such a clear intention in this case, we conclude that common Article 3, should not be read to include all forms of non-international armed conflict.
II. Application of WCA and Associated Treaties to al Qaeda
It is clear from the foregoing that members of the al Qaeda terrorist organization do not receive the protections of the laws of war. Therefore, neither their detention nor their trial by the U.S. Armed Forces is subject to the Geneva Conventions (or the WCA). Three reasons, examined in detail below, support this conclusion. First, al Qaeda’s status as a non-State actor renders it ineligible to claim the protections of the Geneva Conventions. Second, the nature of the conflict precludes application of common Article 3 of the Geneva Conventions. Third, al Qaeda members fail to satisfy the eligibility requirements for treatment as POWs under Geneva Convention III.
Al Qaeda’s status as a non-State actor renders it ineligible to claim the protections of the treaties specified by the WCA. Al Qaeda is not a State. It is a non-governmental terrorist organization composed of members from many nations, with ongoing operations in dozens of nations. Its members seem united in following a radical brand of Islam that seeks to attack Americans throughout the world. Non-governmental organizations cannot be parties to any of the international agreements here governing the laws of war. Al Qaeda is not eligible to sign the Geneva Conventions – and even if it were eligible, it has not done so. Common Article 2, which triggers the Geneva Convention provisions regulating detention conditions and procedures for trial of POWs, is limited only to cases of declared war or armed conflict "between two or more of the High Contracting Parties." Al Qaeda is not a High Contracting Party. As a result, the U.S. military’s treatment of al Qaeda members is not governed by the bulk of the Geneva Conventions, specifically those provisions concerning POWs. Conduct towards captured members of al Qaeda, therefore, also cannot constitute a violation of 18 U.S.C. § 2441 (c)(1) or § 2441 (c)(2). [24]
Second, the nature of the conflict precludes application of common Article 3 of the Geneva Conventions. Al Qaeda is not covered by common Article 3, because the current conflict is not covered by the Geneva Conventions. As discussed in Part I, the text of Article 3, when read in harmony with Common Article 2, shows that the Geneva Conventions were intended to cover either: a) traditional wars between Nation States (Article 2), or non-international civil wars (Article 3). Our conflict with al Qaeda does not fit into either category. The current conflict is not an international war between Nation States, but rather a conflict between a Nation State and a non-governmental organization. At the same time, the current conflict is not a civil war under Article 3, because it is a conflict of "an international character," rather than an international armed conflict between parties contending for control over a government or territory. Therefore, the military’s treatment of al Qaeda members captured in that conflict is not limited either by common Article 3 of the Geneva Conventions or 18 U.S.C. § 2441 (c)(3), the provision of the WCA incorporating that article. [25]
Third, al Qaeda members fail to satisfy the eligibility requirements for treatment as POWs under Geneva Convention III. It might be argues that, even though it is not a State party to the Geneva Convention, al Qaeda could be covered by some protections in Geneva Convention III on the treatment of POWs. Article 4(A)(2) of the Geneva Convention III defines prisoners of war as including not only captured members of the armed forces of a High Contracting Party, but also irregular forces such as "[m]embers of other militias and members of other volunteer corps, including those of organized resistance movements." Geneva Convention III, art. 4. Article 4(A)(3) also includes as POWs "[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power." Id. art. 4(A)(3). It might be claimed that the broad terms of these provisions could be stretched to cover al Qaeda.
This view would be mistaken. Article 4 does not expand the application of the Convention beyond the circumstances expressly addressed in common Articles 2 and 3. Unless there is a conflict subject to Article 2 or 3 (the Convention’s jurisdictional provisions), Article 4 simply does not apply. As we have argued with respect to Article 3, and shall further argue with respect to Article 2, the conflict in Afghanistan does not fall within either Articles 2 or 3. As a result, Article 4 has no application. In other words, Article 4 cannot be read as an alternative and far more expansive, statement of the application of the Convention. It merely specifies, where there is a conflict covered by the Convention, who must accord POW status.
Even if Article 4, however, were considered somehow to be jurisdictional as well as substantive, captured members of al Qaeda still would not receive the protections accorded to POWs. Article 4(A)(2), for example, further requires that the militia or volunteers fulfill the conditions first established by the Hague Convention IV of 1907 for those who would receive that protections of the laws of war. Hague Convention IV declares that the "laws, rights and duties of war" only apply to armies, militia, and volunteer corps when they fulfill four conditions: command by responsible individuals, wearing insignia, carrying arms openly, and obeying the laws of war. Hague Convention IV, Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277. Al Qaeda members have clearly demonstrated that they will not follow these basic requirements of lawful warfare. They have attacked purely civilian targets of no military value; they refused to wear uniform or insignia or carry arms openly, but instead hijacked civilian airliners, took hostages, and killed them; they have deliberately targeted and killed thousands of civilians; and they themselves do not obey the laws of war concerning the protection of the lives of civilians or the means legitimate to combat. Thus, Article 4(A)(3) is inapt because al Qaeda do not qualify as "regular armed forces," and its members do not qualify for protection as lawful combatants under the laws of war.
III. Application of the Geneva Conventions to the Taliban Militia
Whether the Geneva Conventions apply to the detention and trial of members of the Taliban militia presents a more difficult legal question. Afghanistan has been a party to all four the Geneva Conventions since September 1956. Some might argue that this requires application of the Geneva Conventions to the present conflict with respect to the Taliban militia, which would then trigger the WCA. This argument depends, however, on the assumptions that during the period in which the Taliban militia was ascendant in Afghanistan, the Taliban was the de facto government of that nation, that Afghanistan continued to have the essential attributes of statehood, and that Afghanistan continued in good standing as a party to the treaties that its previous governments had signed.
We think that all of these assumptions are disputable, and indeed false. The weight of informed opinion strongly supports the conclusion that, for the period in question, Afghanistan was a "failed State" whose territory had been largely overrun and held by violence by a militia of faction rather than by a government. Accordingly, Afghanistan was without the attributes of statehood necessary to continue as a party to the Geneva Conventions, and the Taliban militia like al Qaeda, is therefore not entitled to the protections if the Geneva Conventions. Furthermore, there appears to be substantial evidence that the Taliban leadership cannot be distinguished from al Qaeda, and accordingly that the Taliban militia cannot stand on a higher footing under the Geneva Conventions.
A. Constitutional Authority
It is clear that, under the Constitution, the Executive has the plenary authority to determine that Afghanistan ceased at relevant times to be an operating State and therefore that members of the Taliban militia were and are not protected by the Geneva Conventions. [26] As an initial matter, Article II makes clear that the President is vested with all of the federal executive power, that he "shall be Commander in Chief," that he shall appoint, with the advice and consent of the Senate, and receive, ambassadors, and that he "shall have Power, by and which the Advice and Consent of the Senate, to make Treaties." U.S. Const, art. II, §1 limits Congress to "[a]ll legislative Powers herein granted" in the rest of Article I.
From the very beginnings of the Republic, this constitutional arrangement has been understood to grant the President plenary control over the conduct of foreign relations. As Secretary of State Thomas Jefferson observed during the first Washington Administration: "The constitution has divided the powers of government into three branches [and] … has declared that ‘the executive powers shall be vested in the President,’ submitting only special articles of it to a negative by the senate." [27] Due to this structure, Jefferson continued, "[t]he transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly." [28] In defending President Washington’s authority to issue the Neutrality Proclamation, Alexander Hamilton came to the same interpretation of the President’s foreign affairs powers. According to Hamilton, Article II "ought… to be considered as intended… to specify and regulate the principal articles implied in the definition of Executive Power; leaving the rest to flow from the general grant of that power." [29] As future Chief Justice John Marshall famously declared a few years later, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations… The [executive] department… is entrusted with the whole foreign intercourse of the nation…" [30] Given the agreement of Jefferson, Hamilton, and Marshall, it has not been difficult for the executive branch consistently to assert the President’s plenary authority in foreign affairs ever since.
On a few occasions where it has addressed the question, the Supreme Court has lent its approval to the executive branch’s broad powers in the field of foreign affairs. Responsibility for the conduct of foreign affairs and for protecting the national security are, as the Supreme Court has observed, "central’ Presidential domains." [31] The President’s constitutional primacy flows from both his unique position in the constitutional structure, and from the specific grants of authority in Article II that make the President both the Chief Executive of the nation and the Commander in Chief. [32] Due to the President’s constitutionally superior position, the Supreme Court has consistently "recognized ‘the generally accepted view that foreign policy [is] the province and responsibility of the Executive.’" [33] This foreign affairs power is independent of Congress: it is "the very delicate, plenary, and exclusive power of the President as sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress. [34]
Part of the President’s plenary power over the conduct of the Nation’s foreign relations is the interpretation of treaties and of international law. Interpretation of international law includes the determination whether a territory has the necessary political structure to qualify as a Nation State for purposes of treaty implementation. In Clark v. Allen, 331 U.S. 503 (1947), for example, the Supreme Court considered whether a 1923 treaty with Germany continued to exist after the defeat, occupation and partition of Germany by the victorious World War II Allies. The Court rejected the argument that the treaty "must be held to have failed to survive the [Second World War], since Germany, as a result of its defeat and the occupation by the Allies, has ceased to exist as an independent national or international community." [35] Instead, the Court held that "the question whether a state is in a position to perform its treaty obligations is essentially a political question. Terliden v. Ames, 184 U.S. 270, 288 [(1902)]. We find no evidence that the political departments have considered the collapse and surrender of Germany as putting an end to such provisions of the treaty as survived the outbreak of the war or the obligations of either party in respect to them." [36]
Thus, Clark demonstrates the Supreme Court’s sanction for the Executive’s constitutional authority to decide the "political question" whether Germany had ceased to exist as a Nation State and, if so, whether the 1923 treaty with Germany had become inoperative. Equally here, the executive branch should conclude that Afghanistan was not "in a position to perform its treaty obligations" because it lacked, at least throughout the Taliban’s ascendancy, all the elements of statehood. If the Executive made such a determination, the Geneva Conventions would be inoperative as to Afghanistan until it was in a position to perform its Convention duties. The federal courts would not review such political questions, but instead would defer to the decision of the Executive.
B. Status as a Failed State
There are ample grounds that demonstrate that Afghanistan was a failed State. Indeed, the findings of the State and Defense Departments, of foreign leaders, and of expert opinion overwhelmingly support such a conclusion.
International law recognizes many situations in which there may be a territory that has no "State." A variety of situations can answer to this description. [37] Of chief relevance here is the category of the "failed State." The case of Somalia in 1992, at the time of the United States intervention, provides a clear example of this category.
A "failed State" is generally characterized by the collapse or near-collapse of State authority. Such collapse is characterized by the inability of central authorities to maintain government institutions, ensure law and order or engage in normal dealings with other governments, and by the prevalence of violence that destabilizes civil society and the economy. The Executive can readily find that at the outset of this conflict, when the country was largely in the hands of the Taliban militia, there was no functioning central government in Afghanistan that was capable of providing the most basic services to the Afghan population, of suppressing endemic internal violence, or of maintaining normal relations with other governments. Afghanistan, consequently, was without the status of a State for purposes of treaty law, and the Taliban militia could not have qualified ad the de facto government of Afghanistan. Rather, the Taliban militia would have had the status only of a violent faction or movement contending with other factions for control of that country.
We want to make clear that this Office does not have access to all of the facts related to the activities of the Taliban militia and al Qaeda in Afghanistan. Nonetheless, the available facts in the public record support our conclusion that Afghanistan was a failed state – including facts that pre-existed the military reversals suffered by the Taliban militia and the formation of the new transitional government pursuant to the Bonn agreement. Indeed, the departments best positioned to make such a determination appear to have reached that conclusion some time ago. Secretary of Defense Donald Rumsfeld, for example, declared at a November 2, 2001 press conference that the "Taliban is not a government. The government of Afghanistan does not exist today. The Taliban never was a government as such. It was a force in the country that is not substantially weakened – in many cases cloistered away from the people." [38]
The State Department has taken the same view. Near the start of the conflict, the Bureau of South Asian Affairs found that "[t]here is no functioning central government [in Afghanistan]. The country is divided among fighting factions… the Taliban [is] a radical Islamic movement [that] occupies about 90% of the country. [39]
Prominent authorities and experts on Afghan affairs agree that Afghanistan was a failed State. As one leading scholar of international law has written, "[t]he most dramatic examples of the decline in state authority can be found in countries where government and civil order have virtually disappeared. Recent examples are Liberia, Somalia, and Afghanistan. The term ‘failed states’ has come to be used for these cases and other like them." [40] Lakhdar Brahimi, the United Nations mediator in Afghanistan and a former Algerian Foreign Minister, described Afghanistan under the Taliban ad a "failed state which looks like an infected wound." [41] Tony Blair, the Prime Minister of Great Britain, on a visit to that country this month, declared that "Afghanistan has been a failed state for too long and the whole world has paid the price." [42]
Traditional legal analysis also makes clear that Afghanistan was a failed State during the period of the Taliban militia’s existence. A State has failed when centralized governmental authority has almost completely collapsed, no central authorities are capable of maintaining government institutions or ensuring law and order, and violence has destabilized civil society and the economy. [43] A failed state will not satisfy some or all of the three traditional tests for "statehood" under international law:
In another version of the traditional formulation, the State Department has identified four tests for "statehood":
Based on these factors, we conclude that Afghanistan under the Taliban militia was in a condition of the "statelessness," and therefore was not a High Contracting Party to the Geneva Conventions for at least that period of time. The condition of having and organized governmental administration was plainly not met. Indeed, there are good reasons to doubt whether any of the conditions was met.
First, even before the outset of the conflict with the United States, the Taliban militia did not have effective control over a clearly defined territory and population. Even before the United States air strikes began, at least ten percent of the country, and the population within those areas, was governed by the Northern Alliance. A large part of the Afghan population in recent years has consisted of refugees: as of June 2001, there were an estimated 2,000,000 Afghan refugees in Pakistan, and as of December 2000, an estimated 1,500,000 were in Iran. [46] These figures demonstrate that a significant segment of the Afghan population was never under the control of the Taliban militia. It is unclear how strong was the hold of the Taliban militia before the conflict, in light of the rapid military successes of the Northern Alliance in just a few weeks.
Indeed, the facts appear to show that Afghanistan appears to have been divided between different tribal and warring factions, rather than by any central state as such. As we have noted, the State Department has found that Afghanistan was not under the control of a central government, but was instead divided among different warlords and ethnic groups. The Taliban militia in essence represented only an ethnically Pashtun movement, a "tribal militia," [47] that did not command the allegiance of other major ethnic groups in Afghanistan and that was apparently unable to suppress endemic violence in the country. As a prominent writer on the Taliban militia wrote well before the current conflict began, "[e]ven if [the Taliban] were to conquer the north, it would not bring stability, only continuing guerilla war by the non-Pashtuns, but this time from bases in Central Asia and Iran which would further destabilize the region." [48]
Second, again even before the United States air strikes and the successes of the Northern Alliance, an organized governmental administration did not exist in Afghanistan. One expert on the Taliban concluded that the country had
Another expert reached similar conclusions:
The State Department also came to such conclusions. In testimony early in October 2001 before the Senate Foreign Relations Committee’s Subcommittee on Near East and South Asian Affairs, Assistant Secretary of State for South Asian Affairs Christina Rocca explained that:
Rather than performing normal government functions, the Taliban militia exhibited the characteristics of a criminal gang. The United Nations Security Council found that the Taliban militia extracted massive profits from illegal drug trafficking in Afghanistan and subsidized terrorism from those revenues. [52]
Third, the Taliban militia was unable to conduct normal foreign relations or to fulfill its international legal obligations. Indeed, the public record shows that the Taliban militia had become so subject to the domination and control of al Qaeda that it could not pursue independent policies with respect to the outside world. [53] Publicly known facts demonstrate that the Taliban was unwilling and perhaps unable to obey its international obligations and to conduct normal diplomatic relations. Thus, the Taliban has consistently refused to comply with United Nations Security Council Resolutions 1333 (2000) and 1267 (1999), which called on it to surrender Osama bin Laden to justice and to take other actions to abate terrorism based in Afghanistan. [54] Those resolutions also called on all States to deny permission for aircraft to take off or to land if they were owned or operated by or for the Taliban, and to freeze funds and other resourced owned or controlled by the Taliban. The Taliban also reportedly refused or was unable to extradite bin Laden at the request of Saudi Arabia in September, 1998, despite close relations between the Saudi government and itself. As a result, the Saudi government expelled the Afghan charge d’affaires. [55] The Taliban’s continuing role in sheltering and supporting those believed to be responsible for the terrorist attacks of September 11, 2001 placed it in clear breach of international law, which required it to prevent the use of its territory as a launching pad for attacks against another Nation. [56]
Fourth, the Taliban militia was not recognized as the legitimate government of Afghanistan by the United States or by any member of the international community except Pakistan. Neither the United States nor the United Nations ever recognized that the Taliban militia were a government. The only two other States that had maintained diplomatic relations with it before the current conflict began (Saudi Arabia and the United Arab Emirates) soon served them. [57] Even Pakistan had withdrawn its recognition before the end of hostilities between the United States and the Taliban forces. This universal refusal to recognize the Taliban militia as a government demonstrates that other nations and the United Nations concur in our judgment that the Taliban militia was bi government and that Afghanistan had ceased to operate as a Nation State.
Based on the foregoing, we conclude that the evidence supports the conclusion that Afghanistan, when largely controlled by the Taliban, failed some, and perhaps all, of the ordinary tests of statehood. Nor do we think that the military successes of the United States and the Northern Alliance change that outcome. Afghanistan was stateless for the relevant period of the conflict, even if after the Bonn Agreement it becomes a State recognized by the United Nations, the United States, and most other nations. [58] If Afghanistan was in a condition of statelessness during the time of the conflict, the Taliban militia could not have been considered a government hat was also a High Contracting Party to the Geneva Conventions.
The conclusion that members of the Taliban militia are not entitled to the protections accorded to POWs under the Geneva Conventions received further support from other arguments. As we have already suggested, there is substantial evidence that the Taliban an al Qaeda were so closely intertwined that the Taliban cannot be regarded as an independent actor, and therefore cannot stand on a higher footing under the Geneva Conventions than al Qaeda. Mullah Mohammed Omar, the spiritual leader of the Taliban, appears to have been particularly susceptible to the more sophisticated leadership of al Qaeda, who "introduced him to the world of Islamic radicalism, global jihad and hatred of the United States," who exercised great religions and ideological influence over him, and who furnished him with personal favors such as a bomb-proof house in Kandahar. [59] In Particular, Omar, who was born into poverty and was virtually uneducated, seems to have worked closely with Osama bin Laden, who shared with Omar a vision of an international Islamic revolution. [60]
MEMO 4
U.S. Department of Justice
Office of the Legal Counsel
Office of the Deputy Assistant Attorney General
Washington, D.C. 20530
January 9, 2002
MEMORANDUM FOR WILLIAM J. HAYNES II
GENERAL COUNSEL, DEPARTMENT OF DEFENSE
FROM: John Yoo
Deputy Assistant Attorney General
Robert J. Delahunty
Special Counsel
RE: Application of Treaties and Laws to al Qaeda and Taliban Detainees
You have asked for our Office's views concerning the effect of international treaties and federal laws on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan. In particular, you have asked whether the laws of armed conflict apply to the conditions of detention and the procedures for trial of members of al Qaeda and the Taliban militia. We conclude that these treaties do not protect members of the al Qaeda organization, which as a non-State actor cannot be a party to the international agreements governing war. We further conclude that that these treaties do not apply to the Taliban militia. This memorandum expresses no view as to whether the President should decide, as a matter of policy, that the U.S. Armed Forces should adhere to the standards of conduct in those treaties with respect to the treatment of prisoners.
We believe it most useful to structure the analysis of these questions by focusing on the War Crimes Act, 18 U.S.C. § 2441 (Supp. III 1997) ("WCA"). The WCA directly incorporates several provisions of international treaties governing the laws of war into the federal criminal code. Part I of this memorandum describes the WCA and teh most relevant treaties taht it incorporates: the four 1949 Geneva Conventions, which generally regulate the treatment of n on-combatants, such as prisoners of war ("POWs"), the injured and sick, and civilians. [1]
Part II examines whether al Qaeda detainees can claim the protections of these agreements. Al Qaeda is merely a violent political movement or organization and not a nation-state. As a result, it is ineligible to be a signatory to any treaty. Because of the novel nature of this conflict, moreover, we do not believe that al Qaeda would be included in non-international forms of armed conflict to which some provisions of the Geneva Conventions might apply. Therefore, neither the Geneva Conventions nor the WCA regulate the detention of al Qaeda prisoners captured during the Afghanistan conflict.
Part III discuses whether the same treaty provisions, as incorporated through the WCA apply to the treatment of captured members of the Taliban militia. We believe that the Geneva Conventions do not apply for several reasons. First, the Taliban was not a government and Afghanistan was not – even prior to the beginning of the present conflict – a functioning State during the period in which they engaged in hostilities against the United States and its allies. Afghanistan’s status as a failed state is ground alone to find that members of the Taliban militia are not entitled to enemy POW status under the Geneva Conventions. Further, it is clear that the President has the constitutional authority to suspend our treaties with Afghanistan pending the restoration of a legitimate government capable of performing Afghanistan’s treaty obligations. Second, it appears from the public evidence that the Taliban militia may have been so intertwined with al Qaeda as to be functionally indistinguishable from it. To the extent that the Taliban militia was more akin to a non-governmental organization that used military force to pursue its religious and political ideology than a functioning government, its members would be on the same legal footing as al Qaeda.
In part IV, we address the question whether any customary international law of armed conflict may apply to the al Qaeda or Taliban militia members detained during the course of the Afghanistan Conflict. We conclude that customary international law, whatever its source and content, does not bind the President or restrict the actions of the United States military, because it does not constitute federal law recognized under the Supremacy Clause of the Constitution. The President, however, has the constitutional authority as Commander in Chief to interpret and apply the customary or common laws of war in such a way that they would extend to the conduct of members of both al Qaeda and the Taliban, and also to the conduct of the U.S. Armed Forces towards members of those groups taken as prisoners in Afghanistan.
I. Background and Overview of the War Crimes Act and the Geneva Conventions
It is our understanding that your department is considering two basic plans regarding the treatment of members of al Qaeda and the Taliban militia detained during the Afghanistan conflict. First, the Defense Department intends to make available a facility at the U.S. Navy base at Guantanamo Bay, Cuba, for the long-term detention of these individuals, who have come under our control either through capture by our military or transfer from our allies in Afghanistan. We have discussed in a separate memorandum the federal jurisdiction issues that might arise concerning Guantanamo Bay. [2] Second, your department is developing procedures to implement the President’s Military Order of November 13, 2001, which establishes military commissions for the trial of violations of the laws of war committed by non-U.S. citizens. [3] The question has arisen whether the Geneva Conventions, or other relevant international treaties or federal laws, regulate these proposed policies.
We believe that the WCA provides a useful starting point for our analysis of the application of the Geneva Conventions to the treatment of detainees captured in the Afghanistan theater of operations. [4] Section 2441 of Title 18 renders certain acts punishable as "war crimes." The statute’s definition of that term incorporates, by reference, certain treaties or treaty provisions relating to the laws of war, including the Geneva Conventions.
A. Section 2441: An Overview
Section 2441 reads in full as follows:
War crimes
(a) Offense -- Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(b) Circumstances -- The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).
(c) Definition -- As used in this section "war crime" means any conduct --
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international convention signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.
18 U.S.C. § 2441.
Section 2441 lists four categories of war crimes. First, it criminalizes "grave breaches" of the Geneva Conventions, which are defined by treaty and will be discussed below. Second, it makes illegal conduct prohibited by articles 23, 25, 27, and 28 of the Annex to the Hague Convention IV. Third, it criminalizes violations of what is known as "common" Article 3, which is an identical provision common to all four of the Geneva Conventions. Fourth, it criminalizes conduct prohibited by certain other laws of war treaties, once the United States joins them. A House Report states that the original legislation "carries out the international obligations of the United States under the Geneva Conventions of 1949 to provide criminal penalties for certain war crimes." H.R. Rep. No. 104-698 at 1 (1996), reprinted in 1996 U.S.C.C.A.N. at 2166, 2166. each of those four conventions includes a clause relating to legislative implementation and to criminal punishment. [5]
In enacting section 2441, Congress also sought to fill certain perceived gaps in the coverage of federal criminal law. The main gaps were thought to be of two kinds: subject matter jurisdiction and personal jurisdiction. First, Congress found that "[t]here are major gaps in the prosecutability of individuals under federal criminal law for war crimes committed against Americans." H.R. Rep. No. 104-698 at 6, reprinted in 1996 U.S.C.C.A.N. at 2170. [6] Second, Congress found that "[t]he ability to court martial members of our armed services who commit war crimes ends when they leave military service. [Section 2441] would allow fir prosecution even after discharge." Id. at 7, reprinted in 1996 U.S.C.C.A.N. at 2172. [7] Congress considered it important to fill this gap, not only in the interest of the victims of war crimes, but also of the accused. "The Americans prosecuted would have available all the procedural protections of the American justice system. These might be lacking if the United States extradited the individuals to their victims’ home countries for prosecution." Id. [8] Accordingly, Section 2441 criminalizes forms of conduct in which a U.S. national or a member of the Armed Forces may be either a victim or a perpetrator.
B. Grave Breaches of the Geneva Conventions
The Geneva Conventions were approved by a diplomatic conference on August 12, 1949, and remain the agreements to which more States have become parties than any other concerning the laws of war. Convention I deals with the treatment of the wounded and sick in armed forces in the filed; Convention II addresses treatment of the wounded, sick, and shipwrecked in armed forces at sea; Convention III regulates treatment of POWs; Convention IV addresses the treatment of citizens, the Geneva Conventions set the rules for the treatment of the victims of war.
The Geneva Conventions, like treaties generally, structure legal relationships between Nation States, not between Nation States and private, subnational groups or organizations. [9] All four Conventions share the same Article 2, known as "common Article 2." It states:
In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
(Emphasis added)
As incorporated by § 2441(c)(1), the four Geneva Conventions similarly define "grave breaches." Geneva Convention III on POWs defines grave breach as:
willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.
Geneva Convention III, art. 130. As mentioned before, the Geneva Conventions require the High Contracting Parties to enact penal legislation to punish anyone who commits or orders a grave breach. See, e.d., id. art. 129. Further, each State party has the obligation to search for and bring to justice (either before its courts or by delivering a suspect to another State party) anyone who commits a grave breach. No State party is permitted to absolve itself or any other nation liability for committing a grave breach.
Thus, the WCA does not criminalize all breaches of the Geneva Conventions. Failure to follow some of the regulations regarding the treatment of POWs, such as difficulty in meeting all of the conditions set forth for POW camp conditions, does not constitute a grave breach within the meaning of Geneva Convention III, art. 130. Only by causing great suffering or serious bodily injury to POWs, killing or torturing them, depriving them of access to a fair trial, or forcing them to serve in the Armed Forces, could the United States actually commit a grave breach. Similarly, unintentional, isolated collateral damage on civilian targets would not constitute a grave breach within the meaning of Geneva Convention IV, art. 147. Article 147 requires that for a grave breach to have occurred, destruction of property must have been done "wantonly" and without military justification, while the killing of injury of civilians must have been "willful."
D. Common Article 3 of the Geneva Conventions
Section 2441 (c)(3) also defines as a war crime conduct that "constitutes a violation of common Article 3" of the Geneva Conventions. Article 3 is a unique provision that governs the conduct of signatories to the Conventions in a particular kind of conflict that is not one between High Contracting Parties to the Conventions. Thus, common Article 3 may require the United States, as a High Contracting Party, to follow certain rules even if other parties to the conflict are not parties to the Conventions. On the other hand, Article 3 requires state parties to follow only certain minimum standards of treatment toward prisoners, civilians, or the sick and wounded, rather than the Conventions as a whole.
Common Article 3 reads in relevant part as follows:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth, or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity; in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for…
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
Common article 3 complements common Article 2. Article 2 applies to cases of declared war or of any other armed conflict that may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. [10] Common Article 3, however, covers "armed conflict not of an international character" – a war that does not involve cross-border attacks – that occurs within the territory of one of the High Contracting Parties. There is substantial reason to think that this language refers specifically to a condition of civil war, or a large-scale armed conflict between a State and an armed movement within its own territory.
To begin with Article 3’s text strongly supports the interpretation that it applies to large-scale conflicts between a State and an insurgent group. First, the language at the end of Article 3 states that "[t]he application of the preceding provisions shall not affect the legal status of the Parties to the conflict." This provision was designed to ensure that a Party that observed Article 3 during a civil war would not be understood to have granted the "recognition of the insurgents as an adverse party." Frits Kalshoven, Constraints on the Waging of War 59 (1987). Second, Article 3 is in terms limited to "armed conflict… occurring in the territory of one of the High Contracting Parties" (emphasis added). This limitation makes perfect sense if the Article applies to civil wars, which are fought primarily or solely within the territory of a single state. The limitation makes little sense, however, as applied to a conflict between a State and a transitional terrorist group, which may operate from different territorial bases, some of which might be located in States that are parties to the Conventions and some of which might not be. In such a case, the Conventions would apply to a single armed conflict in some scenes of action but not in others – which seems inexplicable.
This interpretation is supported by commentators. One well-known commentary states that "a non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other, the parties to the conflict are not sovereign States, but the government of a single State in conflict with one or more armed factions within its territory. [11] A legal scholar writing in the same year in which the Conventions were prepared stated that "a conflict not of an international character occurring in the territory of one of the High Contracting Parties… must normally mean a civil war." [12]
Analysis of the background to the adoption of the Geneva Conventions in 1949 confirms our understanding of common Article 3. It appears that the drafters of the Conventions had in mind only the two forms of armed conflict that were regarded as matters of general international concern at the time: armed conflict between Nation States (subject to Article 2), and large-scale civil war within a Nation State (subject to Article 3). To understand the context in which the Geneva Conventions were drafted, it will be helpful to identify three distinct phases in the development of the laws of war.
First, the traditional law of war was based on a stark dichotomy between "belligerency" and "insurgency." The category of "belligerency" applied to armed conflicts between sovereign States (unless there was recognition of belligerency in a civil war), while the category of "insurgency" applied to armed violence breaking out within the territory of a sovereign State. [13] Correspondingly, international law treated two classes of conflict in different ways. Inter-state wars were regulated by a body of international legal rules governing both the conduct of hostilities and the protection of noncombatants. By contrast, there were very few international rules governing civil unrest, for States preferred to regard internal strife as rebellion, mutiny and treason coming within the purview of national criminal law, which precluded any possible intrusion by other States. [14] This was a "clearly sovereignty-oriented" phase of international law. [15]
The second phase began as early as the Spanish Civil war (1936-39) and extended through the time of the drafting of the Geneva Conventions until relatively recently. During this period, State practice began to apply certain general principles of humanitarian law beyond the traditional field of State-to-State conflict to "those internal conflicts that constituted large-scale civil wars." [16] In addition to the Spanish Civil War, events in 1947 during the Civil War between the Communists and the National regime in China illustrated this new tendency. [17] Common Article 3, which was prepared during this second phase, was apparently addressed to armed conflicts akin to the Chinese and Spanish civil wars. As one commentator has described it, Article 3 was designed to restrain governments "in the handling of armed violence directed against them for the express purpose of secession or at securing a change in the government of a State," but even after the adoption of the Conventions it remained "uncertain whether [Article 3] applied to full-scale civil war." [18]
The third phase represents a more complete break than the second with the traditional "State-sovereignty-oriented approach" of international law. This approach gives central place to individual human rights. As a consequence, it blurs the distinction between international and internal armed conflicts, and even that between civil wars and other forms of internal armed conflict. This approach is well illustrated by the ICTY’s decision in Tadic, which appears to take the view that common Article 3 applies to a non-international armed conflicts of any description, and is not limited to civil wars between a State and an insurgent group. In this conception, common Article 3 is not just a complement to common Article 2; rather, it is a catch-all that establishes standards for any and all armed conflicts not included in common Article 2. [19]
Nonetheless, despite this recent trend, we think that such an interpretation of common Article 3 fails to take into account, not only the language of the provision, but also its historical context. First, as we have described above, such a reading is inconsistent with the text of Article 3 itself, which applies only to "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." In conjunction with common Article 2, the text of Article 3 simply does not reach international conflicts where one of the parties is not a Nation State. If we were to read the Geneva Conventions as applying to all forms of armed conflict, we would expect the High Contracting Parties to have used broader language, which the easily could have done. To interpret common Article 3 by expanding its scope well beyond the meaning borne by the text is effectively to amend the Geneva Conventions without approval of the State Parties to the agreements.
Second, as we have discussed, Article 3 was prepared during a period in which the traditional, State-centered view of international law was still dominant and was only just beginning to give way to a human-rights-based approach. Giving due weight to the State practice and doctrinal understanding of the time, it seems to us overwhelmingly likely that an armed conflict between a Nation State and a transitional terrorist organization, or between a Nation State and a failed State harboring and supporting a transitional terrorist organization, could not have been within the contemplation of the drafters of common Article 3. These would have been simply unforeseen and, therefore, not provided for. Indeed, it seems to have been uncertain even a decade after the Conventions were signed whether common Article 3 applied to armed conflicts that were neither international in character nor civil wars but anti-colonialist wars of independence such as those in Algeria and Kenya. See Gerald Irving Draper, The Red Cross Conventions 15 (1957). Further, it is telling that in order to address this unforeseen circumstance, the State Parties to the Geneva Conventions did not attempt to distort the terms of common Article 3 to apply it to cases that did not fit within its terms. Instead, they drafted two new protocols (neither of which the United States has ratified) to adapt the Conventions to the conditions of contemporary hostilities. [20] Accordingly, common Article 3 is best understood not to apply to such armed conflicts.
Third, it appears that in enacting the WCA, Congress did not understand the scope of Article 3 to extend beyond civil wars to all other types of internal armed conflict. As discussed in our review of the legislative history, when extending the WCA to cover violations of common Article 3, the House apparently understood that it was codifying treaty provisions that "forbid atrocities occurring in both civil ward and wars between nations." [21] If congress had embraced a much broader view of common Article 3, and hence of 18 U.S.C. § 2441, we would expect both the statutory text and the legislative history to have included some type of clear statement of congressional intent. The WCA regulates the manner in which the U.S. Armed Forces may conduct military operations against the enemy; as such, it potentially comes into conflict with the President’s Commander in Chief power under Article II of the Constitution. As we have advised others earlier in this conflict, the Commander in Chief power gives the President the plenary authority in determining how best to deploy troops in the field. [22] Any congressional effort to restrict presidential authority by subjecting the conduct of the U.S. Armed Forces to a broad construction of the Geneva Convention, one that is not clearly borne by its text, would represent a possible infringement on presidential discretion to direct the military. We believe that Congress must state explicitly its intention to take the constitutionally dubious step of restricting the President’s plenary power over military operations (including the treatment of prisoners), and that, unless Congress clearly demonstrates such an intent, the WCA must be read to avoid such constitutional problems. [23] As congress has not signaled such a clear intention in this case, we conclude that common Article 3, should not be read to include all forms of non-international armed conflict.
II. Application of WCA and Associated Treaties to al Qaeda
It is clear from the foregoing that members of the al Qaeda terrorist organization do not receive the protections of the laws of war. Therefore, neither their detention nor their trial by the U.S. Armed Forces is subject to the Geneva Conventions (or the WCA). Three reasons, examined in detail below, support this conclusion. First, al Qaeda’s status as a non-State actor renders it ineligible to claim the protections of the Geneva Conventions. Second, the nature of the conflict precludes application of common Article 3 of the Geneva Conventions. Third, al Qaeda members fail to satisfy the eligibility requirements for treatment as POWs under Geneva Convention III.
Al Qaeda’s status as a non-State actor renders it ineligible to claim the protections of the treaties specified by the WCA. Al Qaeda is not a State. It is a non-governmental terrorist organization composed of members from many nations, with ongoing operations in dozens of nations. Its members seem united in following a radical brand of Islam that seeks to attack Americans throughout the world. Non-governmental organizations cannot be parties to any of the international agreements here governing the laws of war. Al Qaeda is not eligible to sign the Geneva Conventions – and even if it were eligible, it has not done so. Common Article 2, which triggers the Geneva Convention provisions regulating detention conditions and procedures for trial of POWs, is limited only to cases of declared war or armed conflict "between two or more of the High Contracting Parties." Al Qaeda is not a High Contracting Party. As a result, the U.S. military’s treatment of al Qaeda members is not governed by the bulk of the Geneva Conventions, specifically those provisions concerning POWs. Conduct towards captured members of al Qaeda, therefore, also cannot constitute a violation of 18 U.S.C. § 2441 (c)(1) or § 2441 (c)(2). [24]
Second, the nature of the conflict precludes application of common Article 3 of the Geneva Conventions. Al Qaeda is not covered by common Article 3, because the current conflict is not covered by the Geneva Conventions. As discussed in Part I, the text of Article 3, when read in harmony with Common Article 2, shows that the Geneva Conventions were intended to cover either: a) traditional wars between Nation States (Article 2), or non-international civil wars (Article 3). Our conflict with al Qaeda does not fit into either category. The current conflict is not an international war between Nation States, but rather a conflict between a Nation State and a non-governmental organization. At the same time, the current conflict is not a civil war under Article 3, because it is a conflict of "an international character," rather than an international armed conflict between parties contending for control over a government or territory. Therefore, the military’s treatment of al Qaeda members captured in that conflict is not limited either by common Article 3 of the Geneva Conventions or 18 U.S.C. § 2441 (c)(3), the provision of the WCA incorporating that article. [25]
Third, al Qaeda members fail to satisfy the eligibility requirements for treatment as POWs under Geneva Convention III. It might be argues that, even though it is not a State party to the Geneva Convention, al Qaeda could be covered by some protections in Geneva Convention III on the treatment of POWs. Article 4(A)(2) of the Geneva Convention III defines prisoners of war as including not only captured members of the armed forces of a High Contracting Party, but also irregular forces such as "[m]embers of other militias and members of other volunteer corps, including those of organized resistance movements." Geneva Convention III, art. 4. Article 4(A)(3) also includes as POWs "[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power." Id. art. 4(A)(3). It might be claimed that the broad terms of these provisions could be stretched to cover al Qaeda.
This view would be mistaken. Article 4 does not expand the application of the Convention beyond the circumstances expressly addressed in common Articles 2 and 3. Unless there is a conflict subject to Article 2 or 3 (the Convention’s jurisdictional provisions), Article 4 simply does not apply. As we have argued with respect to Article 3, and shall further argue with respect to Article 2, the conflict in Afghanistan does not fall within either Articles 2 or 3. As a result, Article 4 has no application. In other words, Article 4 cannot be read as an alternative and far more expansive, statement of the application of the Convention. It merely specifies, where there is a conflict covered by the Convention, who must accord POW status.
Even if Article 4, however, were considered somehow to be jurisdictional as well as substantive, captured members of al Qaeda still would not receive the protections accorded to POWs. Article 4(A)(2), for example, further requires that the militia or volunteers fulfill the conditions first established by the Hague Convention IV of 1907 for those who would receive that protections of the laws of war. Hague Convention IV declares that the "laws, rights and duties of war" only apply to armies, militia, and volunteer corps when they fulfill four conditions: command by responsible individuals, wearing insignia, carrying arms openly, and obeying the laws of war. Hague Convention IV, Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277. Al Qaeda members have clearly demonstrated that they will not follow these basic requirements of lawful warfare. They have attacked purely civilian targets of no military value; they refused to wear uniform or insignia or carry arms openly, but instead hijacked civilian airliners, took hostages, and killed them; they have deliberately targeted and killed thousands of civilians; and they themselves do not obey the laws of war concerning the protection of the lives of civilians or the means legitimate to combat. Thus, Article 4(A)(3) is inapt because al Qaeda do not qualify as "regular armed forces," and its members do not qualify for protection as lawful combatants under the laws of war.
III. Application of the Geneva Conventions to the Taliban Militia
Whether the Geneva Conventions apply to the detention and trial of members of the Taliban militia presents a more difficult legal question. Afghanistan has been a party to all four the Geneva Conventions since September 1956. Some might argue that this requires application of the Geneva Conventions to the present conflict with respect to the Taliban militia, which would then trigger the WCA. This argument depends, however, on the assumptions that during the period in which the Taliban militia was ascendant in Afghanistan, the Taliban was the de facto government of that nation, that Afghanistan continued to have the essential attributes of statehood, and that Afghanistan continued in good standing as a party to the treaties that its previous governments had signed.
We think that all of these assumptions are disputable, and indeed false. The weight of informed opinion strongly supports the conclusion that, for the period in question, Afghanistan was a "failed State" whose territory had been largely overrun and held by violence by a militia of faction rather than by a government. Accordingly, Afghanistan was without the attributes of statehood necessary to continue as a party to the Geneva Conventions, and the Taliban militia like al Qaeda, is therefore not entitled to the protections if the Geneva Conventions. Furthermore, there appears to be substantial evidence that the Taliban leadership cannot be distinguished from al Qaeda, and accordingly that the Taliban militia cannot stand on a higher footing under the Geneva Conventions.
A. Constitutional Authority
It is clear that, under the Constitution, the Executive has the plenary authority to determine that Afghanistan ceased at relevant times to be an operating State and therefore that members of the Taliban militia were and are not protected by the Geneva Conventions. [26] As an initial matter, Article II makes clear that the President is vested with all of the federal executive power, that he "shall be Commander in Chief," that he shall appoint, with the advice and consent of the Senate, and receive, ambassadors, and that he "shall have Power, by and which the Advice and Consent of the Senate, to make Treaties." U.S. Const, art. II, §1 limits Congress to "[a]ll legislative Powers herein granted" in the rest of Article I.
From the very beginnings of the Republic, this constitutional arrangement has been understood to grant the President plenary control over the conduct of foreign relations. As Secretary of State Thomas Jefferson observed during the first Washington Administration: "The constitution has divided the powers of government into three branches [and] … has declared that ‘the executive powers shall be vested in the President,’ submitting only special articles of it to a negative by the senate." [27] Due to this structure, Jefferson continued, "[t]he transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly." [28] In defending President Washington’s authority to issue the Neutrality Proclamation, Alexander Hamilton came to the same interpretation of the President’s foreign affairs powers. According to Hamilton, Article II "ought… to be considered as intended… to specify and regulate the principal articles implied in the definition of Executive Power; leaving the rest to flow from the general grant of that power." [29] As future Chief Justice John Marshall famously declared a few years later, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations… The [executive] department… is entrusted with the whole foreign intercourse of the nation…" [30] Given the agreement of Jefferson, Hamilton, and Marshall, it has not been difficult for the executive branch consistently to assert the President’s plenary authority in foreign affairs ever since.
On a few occasions where it has addressed the question, the Supreme Court has lent its approval to the executive branch’s broad powers in the field of foreign affairs. Responsibility for the conduct of foreign affairs and for protecting the national security are, as the Supreme Court has observed, "central’ Presidential domains." [31] The President’s constitutional primacy flows from both his unique position in the constitutional structure, and from the specific grants of authority in Article II that make the President both the Chief Executive of the nation and the Commander in Chief. [32] Due to the President’s constitutionally superior position, the Supreme Court has consistently "recognized ‘the generally accepted view that foreign policy [is] the province and responsibility of the Executive.’" [33] This foreign affairs power is independent of Congress: it is "the very delicate, plenary, and exclusive power of the President as sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress. [34]
Part of the President’s plenary power over the conduct of the Nation’s foreign relations is the interpretation of treaties and of international law. Interpretation of international law includes the determination whether a territory has the necessary political structure to qualify as a Nation State for purposes of treaty implementation. In Clark v. Allen, 331 U.S. 503 (1947), for example, the Supreme Court considered whether a 1923 treaty with Germany continued to exist after the defeat, occupation and partition of Germany by the victorious World War II Allies. The Court rejected the argument that the treaty "must be held to have failed to survive the [Second World War], since Germany, as a result of its defeat and the occupation by the Allies, has ceased to exist as an independent national or international community." [35] Instead, the Court held that "the question whether a state is in a position to perform its treaty obligations is essentially a political question. Terliden v. Ames, 184 U.S. 270, 288 [(1902)]. We find no evidence that the political departments have considered the collapse and surrender of Germany as putting an end to such provisions of the treaty as survived the outbreak of the war or the obligations of either party in respect to them." [36]
Thus, Clark demonstrates the Supreme Court’s sanction for the Executive’s constitutional authority to decide the "political question" whether Germany had ceased to exist as a Nation State and, if so, whether the 1923 treaty with Germany had become inoperative. Equally here, the executive branch should conclude that Afghanistan was not "in a position to perform its treaty obligations" because it lacked, at least throughout the Taliban’s ascendancy, all the elements of statehood. If the Executive made such a determination, the Geneva Conventions would be inoperative as to Afghanistan until it was in a position to perform its Convention duties. The federal courts would not review such political questions, but instead would defer to the decision of the Executive.
B. Status as a Failed State
There are ample grounds that demonstrate that Afghanistan was a failed State. Indeed, the findings of the State and Defense Departments, of foreign leaders, and of expert opinion overwhelmingly support such a conclusion.
International law recognizes many situations in which there may be a territory that has no "State." A variety of situations can answer to this description. [37] Of chief relevance here is the category of the "failed State." The case of Somalia in 1992, at the time of the United States intervention, provides a clear example of this category.
A "failed State" is generally characterized by the collapse or near-collapse of State authority. Such collapse is characterized by the inability of central authorities to maintain government institutions, ensure law and order or engage in normal dealings with other governments, and by the prevalence of violence that destabilizes civil society and the economy. The Executive can readily find that at the outset of this conflict, when the country was largely in the hands of the Taliban militia, there was no functioning central government in Afghanistan that was capable of providing the most basic services to the Afghan population, of suppressing endemic internal violence, or of maintaining normal relations with other governments. Afghanistan, consequently, was without the status of a State for purposes of treaty law, and the Taliban militia could not have qualified ad the de facto government of Afghanistan. Rather, the Taliban militia would have had the status only of a violent faction or movement contending with other factions for control of that country.
We want to make clear that this Office does not have access to all of the facts related to the activities of the Taliban militia and al Qaeda in Afghanistan. Nonetheless, the available facts in the public record support our conclusion that Afghanistan was a failed state – including facts that pre-existed the military reversals suffered by the Taliban militia and the formation of the new transitional government pursuant to the Bonn agreement. Indeed, the departments best positioned to make such a determination appear to have reached that conclusion some time ago. Secretary of Defense Donald Rumsfeld, for example, declared at a November 2, 2001 press conference that the "Taliban is not a government. The government of Afghanistan does not exist today. The Taliban never was a government as such. It was a force in the country that is not substantially weakened – in many cases cloistered away from the people." [38]
The State Department has taken the same view. Near the start of the conflict, the Bureau of South Asian Affairs found that "[t]here is no functioning central government [in Afghanistan]. The country is divided among fighting factions… the Taliban [is] a radical Islamic movement [that] occupies about 90% of the country. [39]
Prominent authorities and experts on Afghan affairs agree that Afghanistan was a failed State. As one leading scholar of international law has written, "[t]he most dramatic examples of the decline in state authority can be found in countries where government and civil order have virtually disappeared. Recent examples are Liberia, Somalia, and Afghanistan. The term ‘failed states’ has come to be used for these cases and other like them." [40] Lakhdar Brahimi, the United Nations mediator in Afghanistan and a former Algerian Foreign Minister, described Afghanistan under the Taliban ad a "failed state which looks like an infected wound." [41] Tony Blair, the Prime Minister of Great Britain, on a visit to that country this month, declared that "Afghanistan has been a failed state for too long and the whole world has paid the price." [42]
Traditional legal analysis also makes clear that Afghanistan was a failed State during the period of the Taliban militia’s existence. A State has failed when centralized governmental authority has almost completely collapsed, no central authorities are capable of maintaining government institutions or ensuring law and order, and violence has destabilized civil society and the economy. [43] A failed state will not satisfy some or all of the three traditional tests for "statehood" under international law:
i) Does the entity have a defined territory and population?
ii) Are the territory/population under the control of its own government?
iii) Does the entity engage in or have the capacity to engage in formal relations with other states? [44]
In another version of the traditional formulation, the State Department has identified four tests for "statehood":
i) Does the entity have effective control over a clearly defined territory and population?
ii) Is there an organized governmental administration of the territory?
iii) Does the entity have the capacity to act effectively to conduct foreign relations and to fulfill international obligations?
iv) Has the international community recognized the entity? [45]
Based on these factors, we conclude that Afghanistan under the Taliban militia was in a condition of the "statelessness," and therefore was not a High Contracting Party to the Geneva Conventions for at least that period of time. The condition of having and organized governmental administration was plainly not met. Indeed, there are good reasons to doubt whether any of the conditions was met.
First, even before the outset of the conflict with the United States, the Taliban militia did not have effective control over a clearly defined territory and population. Even before the United States air strikes began, at least ten percent of the country, and the population within those areas, was governed by the Northern Alliance. A large part of the Afghan population in recent years has consisted of refugees: as of June 2001, there were an estimated 2,000,000 Afghan refugees in Pakistan, and as of December 2000, an estimated 1,500,000 were in Iran. [46] These figures demonstrate that a significant segment of the Afghan population was never under the control of the Taliban militia. It is unclear how strong was the hold of the Taliban militia before the conflict, in light of the rapid military successes of the Northern Alliance in just a few weeks.
Indeed, the facts appear to show that Afghanistan appears to have been divided between different tribal and warring factions, rather than by any central state as such. As we have noted, the State Department has found that Afghanistan was not under the control of a central government, but was instead divided among different warlords and ethnic groups. The Taliban militia in essence represented only an ethnically Pashtun movement, a "tribal militia," [47] that did not command the allegiance of other major ethnic groups in Afghanistan and that was apparently unable to suppress endemic violence in the country. As a prominent writer on the Taliban militia wrote well before the current conflict began, "[e]ven if [the Taliban] were to conquer the north, it would not bring stability, only continuing guerilla war by the non-Pashtuns, but this time from bases in Central Asia and Iran which would further destabilize the region." [48]
Second, again even before the United States air strikes and the successes of the Northern Alliance, an organized governmental administration did not exist in Afghanistan. One expert on the Taliban concluded that the country had
ceased to exist as a viable state and when a state fails civil society is destroyed. The entire Afghan population has been displaced, not once but many times over. The physical destruction of Kabul has turned it into the Dresden of the late twentieth century… There is no semblance of an infrastructure that can sustain society – even at the lowest common denominator of poverty… The economy is a black hole that is sucking in its neighbors with illicit trade and the smuggling of drugs and weapons, undermining them in the process… Complex relationships of power and authority built up over centuries have broken down completely. No single group or leader has the legitimacy to reunite the country. Rather than a national identity or kinship-trial-based identities, territorial regional identities have become paramount… [T]he Taliban refuse to define the Afghan state they want to constitute and rule over, largely because they have no idea what they want. The lack of a central authority, state organizations, a methodology for command and control mechanisms which can reflect some level of popular participation… make it impossible for many Afghans to accept the Taliban or for the outside world to recognize a Taliban government… No warlord faction has ever felt itself responsible for the civilian population, but the Taliban are incapable of carrying out even the minimum of developmental work because they believe that Islam will take care of everyone. [49]
Another expert reached similar conclusions:
Afghanistan today has become a violent society, bereft of political institutions that function correctly and an economy that functions at all. When this is coupled with the destruction of population and the physical infrastructure … it becomes clear that Afghanistan is a country on the edge of collapse, or at least profound transformation… With the Taliban, there are few meaningful governmental structures and little that actually functions. [50]
The State Department also came to such conclusions. In testimony early in October 2001 before the Senate Foreign Relations Committee’s Subcommittee on Near East and South Asian Affairs, Assistant Secretary of State for South Asian Affairs Christina Rocca explained that:
[t]wenty-two years of conflict have steadily devastated [Afghanistan]. Destroyed its physical and political infrastructure, shattered its institutions, and wrecked its socio-economic fabric… The Taliban have shown no desire to provide even the most rudimentary health, education, and other social services expected of any government. Instead, they have chosen to devote their resources to waging war on the Afghan people, and exporting instability to their neighbors. [51]
Rather than performing normal government functions, the Taliban militia exhibited the characteristics of a criminal gang. The United Nations Security Council found that the Taliban militia extracted massive profits from illegal drug trafficking in Afghanistan and subsidized terrorism from those revenues. [52]
Third, the Taliban militia was unable to conduct normal foreign relations or to fulfill its international legal obligations. Indeed, the public record shows that the Taliban militia had become so subject to the domination and control of al Qaeda that it could not pursue independent policies with respect to the outside world. [53] Publicly known facts demonstrate that the Taliban was unwilling and perhaps unable to obey its international obligations and to conduct normal diplomatic relations. Thus, the Taliban has consistently refused to comply with United Nations Security Council Resolutions 1333 (2000) and 1267 (1999), which called on it to surrender Osama bin Laden to justice and to take other actions to abate terrorism based in Afghanistan. [54] Those resolutions also called on all States to deny permission for aircraft to take off or to land if they were owned or operated by or for the Taliban, and to freeze funds and other resourced owned or controlled by the Taliban. The Taliban also reportedly refused or was unable to extradite bin Laden at the request of Saudi Arabia in September, 1998, despite close relations between the Saudi government and itself. As a result, the Saudi government expelled the Afghan charge d’affaires. [55] The Taliban’s continuing role in sheltering and supporting those believed to be responsible for the terrorist attacks of September 11, 2001 placed it in clear breach of international law, which required it to prevent the use of its territory as a launching pad for attacks against another Nation. [56]
Fourth, the Taliban militia was not recognized as the legitimate government of Afghanistan by the United States or by any member of the international community except Pakistan. Neither the United States nor the United Nations ever recognized that the Taliban militia were a government. The only two other States that had maintained diplomatic relations with it before the current conflict began (Saudi Arabia and the United Arab Emirates) soon served them. [57] Even Pakistan had withdrawn its recognition before the end of hostilities between the United States and the Taliban forces. This universal refusal to recognize the Taliban militia as a government demonstrates that other nations and the United Nations concur in our judgment that the Taliban militia was bi government and that Afghanistan had ceased to operate as a Nation State.
Based on the foregoing, we conclude that the evidence supports the conclusion that Afghanistan, when largely controlled by the Taliban, failed some, and perhaps all, of the ordinary tests of statehood. Nor do we think that the military successes of the United States and the Northern Alliance change that outcome. Afghanistan was stateless for the relevant period of the conflict, even if after the Bonn Agreement it becomes a State recognized by the United Nations, the United States, and most other nations. [58] If Afghanistan was in a condition of statelessness during the time of the conflict, the Taliban militia could not have been considered a government hat was also a High Contracting Party to the Geneva Conventions.
The conclusion that members of the Taliban militia are not entitled to the protections accorded to POWs under the Geneva Conventions received further support from other arguments. As we have already suggested, there is substantial evidence that the Taliban an al Qaeda were so closely intertwined that the Taliban cannot be regarded as an independent actor, and therefore cannot stand on a higher footing under the Geneva Conventions than al Qaeda. Mullah Mohammed Omar, the spiritual leader of the Taliban, appears to have been particularly susceptible to the more sophisticated leadership of al Qaeda, who "introduced him to the world of Islamic radicalism, global jihad and hatred of the United States," who exercised great religions and ideological influence over him, and who furnished him with personal favors such as a bomb-proof house in Kandahar. [59] In Particular, Omar, who was born into poverty and was virtually uneducated, seems to have worked closely with Osama bin Laden, who shared with Omar a vision of an international Islamic revolution. [60]
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