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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.
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.
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
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.