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Yoo, John C
Wednesday, August 21, 2002 06:24 PM
David Addington (E-mail)
ABA report
ABA Task Force Report response.doc; aba enemy_combatants.pdf
David:
Jim asked us to draft up a response for him to use to the ABA's task force report on enemy
combatants. Would ,you mind looking at its substance? I imagine that J im plans on using i t as a
letter to respond to the report . - Attached are the report and the draft response
< ... » « ... »
John Yoo
Office of Legal Counsel
Department of. Justice
; l
202.305.8524 (fax)
OCIO-E0000979
AMERICAN BARASSOCIATION
TASK FORCE ON TREATMENT OF ENEMY COMBATANTS
PRELIMINARY REPORT*
August 8, 2002
TASK FORCE
NealR, Sonnett, Chair
John S. Cooke
Eugene R. Fidell
Albert J. Krieger
Stephen A. Saltzburg,
Suzanne E. Spaulding
*The views expressed herein have not been approved by the House of Delegates
or the Board of Governors of the American Bar Association and, accordingly,
should not be construed as representing the policy of the American Bar
Association.
ocr0-E0000980
PRELIMINARY REPORT OF THE
AMERICAN BAR ASSOCIATION
TASK FORCE ON TREATMENT OF ENEMY COMBATANTS
August 8,2002
I. INTRODUCTION
The September 11, 2001 attack on the United States not only shocked the nation but
identified a new type ofenemy: a group ofindividuals ofvarying nationalities operatingwith relative
freedom in various countries throughout the world who are committed to murdering innocent men,
women, and children found in or associated with the United States; destroying both government and
private property in the United States, and creating a climate of fear among Americans at home and
abroad. The United States reacted, as any nation would and must, with the support of the
international community, to protect its people from future attack.
The unprecedented attack resulted in unprecedented responses by the government. Unable
to know when and where another attack might occur, the government understandably felt the need
to respond quickly and comprehensively to perceived dangers. In the process, the government
confronted some Uni ted States citizens who carri ed arms withforces against whomthe United States
was engaged in battle and others who appeared to be allied with the enemy responsible for
September 11th and committed to future assaults on the United States. This confrontation raised an
enormously important and difficult constitutional question: what rights does a United States citizen
detained by his or her government have when the citizen is alleged to be allied with an enemy group?
As a nation we have struggled for more than 200 years to establish the proper balance under
our Constitution between protection ofliberty and individual rights. In time of war or threat of war,
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the balance may shift - appropriately - toward security, but from past experience we know that such
a shift carries with it a danger of government overreaction and undue trespass on individual rights.
The recent cases of Yaser Hamdi
1
and Jose Padilla,2 United States citizens detained as
"enemy combatants, " bring this potential danger into sharp reliefand raise troubl esome and profound
issues. The government has taken the position that "with no meaningful judicial review, any
American citizen alleged to be an enemy combatant could be detained indefinitely without charges
or counsel on the government's say-so. ,,3
The implications of these detentions are much broader than these two cases. Sadly, in what
promises to be a long, complex, and difficult struggle with a worldwide terrorist network, this is not
likely to be the last instance in which a U.S. citizen is believed to be or accused of acting in concert
with such terrorists.
I Yaser Hamdi was captured during the hostilities in Afghanistan, and was initially
transferred to Camp X-Ray at the Naval Base in Guantanamo Bay, Cuba in January 2002. When
it was discovered that he was born in the United States and may not have renounced his
citizenship, he was brought to the Naval Station Brig in Norfolk, Virginia in April 2002. He has
been continuously detained there as an "enemy combatant."
2 Jose Padilla, a.k.a. Abdullah al Muhajir, was arrested in Chicago on May 8, 2002 pursuant
to a material witness warrant issued in the Southern District of New York. He was detained in
New York City until June 9,2002, when he was declared to be an "enemy combatant" and
transferred to the control of the United States military. The United States District Judge, at the
request of the Department of Justice, vacated the material witness warrant, and Padilla was
transported to the Consolidated Naval Brig in Charleston, South Carolina for detention as an
enemy combatant. See Government's Motion to Dismiss Amended Petition for Writ of Habeas
Corpus in Padilla v. Bush, et. al., Case No. 02-Civ-4445-MBM (S.D.N.Y.).
3 See Hamdi v. Rumsjeld, __F.3d __,2002 WL 148390802 at *5 (4
th
Cir. July 12,
2002).We note that both the Hamdi and Padilla cases are in litigation, and facts and arguments
may emerge that have not been made public. It is not our purpose to address these cases
specifically, but rather to discuss the implications of them and the principles we believe should
be considered as our nation confronts the broader questions they raise.
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When a nation is at war, measures may seem reasonable that would never be acceptable in
a time of peace. This is as true in the United States as in other countries. War, then, poses the
challenge of how to protect a nation so that it may survive and prosper without damaging in the
process the very liberty and freedoms for which the nation stands. As a distinguished Justice ofthe
United States Supreme Court warned more than fifty years ago:
....we must be on constant guard against an excessive use of any
power, military or otherwise, that results in the needless destruction
of our rights and liberties. There must be a careful balancing of
interests. And we must ever keep in mind that 'The Constitution of
the United States is a law for rulers and people, equally in war and in
peace, and covers with the shield of its protection all classes of men,
at all times, and under all circumstances.' Ex parte Milligan, supra,
4 Wall. at pages 120, 121.
Justice Frank Murphy, concurring in Duncan v. Kahanamoku, 327 U.S. 304, 335 (1946).
This is the challenge we faced before, it is the challenge we now face, and sadly it is a
challenge unlikely to disappear in the future. How we deal with citizens suspected of terroristic
activity will say much about us as a society committed to the rule of law. While we must have the
means to prevent more attacks like those of September 11
th
, we must also insure that there are
sufficient safeguards to protect the innocent and prevent possible abuses of power.
In light of the importance of these issues, the ABA Board of Governors, at the request of
President Robert Hirshon, created a Task Force on Treatment of Enemy Combatants to examine
these issues.
The task force is chaired by Neal R. Sonnett, a past chair of the ABA Criminal Justice
Section, and its members are: retired Brigadier General John S. Cooke, chair of the ABA Standing
Committee on Armed Forces Law; Eugene R. Fidell, president ofthe National Institute ofMilitary
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Justice; Albert J. Krieger, chair-elect ofthe ABA Criminal Justice Section; Stephen A. Saltzburg,
a member of the ABA Task Force on Terrorism and the Law; and Suzanne E. Spaulding, chair of
the ABA Standing Committee on Law & National Security.
The charge of the Task Force was to examine the framework surrounding the detention of
United States citizens declared to be "enemy combatants" and the challenging and complex questions
of statutory, constitutional, and international law and policy raised by such detentions.
We have not attempted to address the detention of foreign nationals in immigration
proceedings," or individuals held as material witnesses.' Nor have we considered -- at least at this
time -- the issue of foreign nationals held as "enemy combatants" at the United States Naval Base
at Guantanamo Bay, Cuba." Rather, our initial concern is whether the government can -- or should
-- be able to detain American citizens indefinitely without charges and hold them incommunicado
4 The government recently disclosed that, since September 11th, it detained a total of 751
individuals on immigration violations, and 74 people were still being held in INS custody as of
June 13, 2002. See Center for National Security Studies, et. al. v. United States Department of
Justice, Case No. 01-2500 (Slip. Op. at p.7)
S Two United States District Judges in the Southern District of New York have analyzed the
government's use of the material witness statute, 18 U.S.C. §3144 in post 9/11 cases and have
reached very different results. Compare United States v. Awadallah, 202 F.Supp.2d 55 (S.D.N.Y.
2002) and United States v. Awadallah, 202 F.Supp.2d 82 (S.D.N.Y. 2002), both decided on April
30,2002 with In re The Application ofthe United States For a Material Witness Warrant,_
F.Supp.2d_, 2002 WL 1592739 (S.D.N.Y. 2002).lt is worth noting, however, that material
witnesses have the right to appointed counsel. See Tn re Class Action Applicationfor Habeas
Corpus on BehalfofAll Material Witnesses in Western Dist. of Texas, 612 F.Supp. 940
(W.D.Tex.1985).
6 Two United States District Courts have recently dismissed habeas corpus claims on behalf
of Guantanamo detainees on jurisdictional grounds because the detainees were not within the
territorial jurisdiction of the courts. See Coalition ofClergy v. Bush, 189 F.Supp.2d 1036
(C.D.Cal. 2002);Rasul v. Bush, 2002 WL 1760825 (D.D.C. 2002).
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without a hearing and without access to counsel.'
This Report sets forth broad principles which the Task Force believes should govern such
detentions. We hope and trust that our analysis, conclusions, and principles will generate discussion
and debate on an issue which affects the very fabric of our democracy.
II. BACKGROUND
In the days following the horrific and evil acts ofterrorism on September 11, 2001, our nation
responded swiftly, aggressively, and with widespread national and international support. Congress
did not officially declare war, but it enacted a Joint Resolution authorizing 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 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. ,,8 The United Nations Security Council
approved a resolution recognizing the United States' right to self-defense," and NATO's North
Atlantic Council stated that it regarded the attack as an action implicating Article V of the
Washington Treaty that "an armed attack against one or more of the Allies in Europe or North
America shall be considered an attack against all."
7 As we discuss further infra, we fully recognize the necessity under some circumstances to
detain persons in order to prevent them from engaging in future terrorist attacks. But the power to
detain has obvious implications for individual rights and liberty and therefore merits serious and
careful examination.
8 Public Law 107-40, 115 Stat. 224. The Preamble to the resolution states that the acts of
September 11 were attacks against the United States that "render it both necessary and
appropriate that the United States exercise its rights to self-defense."
9 See U.N.S.C.Res. 1368.
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The September 11attacks were viewed as both crimes and acts ofwar, and the United States
has responded with both military operations and law enforcement actions. Under the circumstances,
legal doctrines and principles from both domestic criminal procedure and international law,
including the law of war, have been applied. Because of the unique nature of the attacks and our
responses to it, it is not surprising that these doctrines and principles have been applied in new ways
and have, to some extent, overlapped.
ITI. ANALYSIS AND LEGAL PRINCIPLES
A. Detention of "Enemy Combatants"
The government maintains that individuals declared to be "enemy combatants" may be
detained indefinitely and have no right under the laws and customs ofwar or the Constitution to meet
with counsel concerning their detention. The term "enemy combatant" is not a term of art which has
a long established meaning. According to one commentator:
Until now, as used by the attorney general, the term "enemy
combatant" appeared nowhere in U.S. criminal law, international law
or in the law ofwar. The term appears to have been appropriated from
ex parte Quirin, the 1942 Nazi saboteurs case, in which the Supreme
Court wrote that "an enemy combatant who without uniform comes
secretly through the lines for the purpose of waging war by
destruction oflife or property [would exemplify] belligerents who are
generally deemed not to be entitled to the status of prisoner of war,
but to be offenders against the law of war subject to trial and
punishment by military tribunals."
Solis, "Even a 'Bad Man' Has Rights," Washington Post, Tuesday, June 25,2002, Page AI9.
In the law of war, "enemy" generally describes an opposing state or quasi-state with which
another state or quasi-state is at war." In a war between states, the enemy consists of all the citizens
10 "War" may exist when a state of war has been declared or when activities involving the use of
force rise to such a level that a state of war exists. Absent a declaration of war, there may be some
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of the other state. In wars involving non-states (typically insurgents or contestants in a civil war),
. who constitutes the enemy is less clear. The "enemy" as an institution or organization (e.g., an
insurgent group or a band ofpartisans) usually does not have a legally cognizable status like a state.
Moreover, who "belongs" to this de facto organization rests not on a single, fairly objective,
not easily changed factor like citizenship, but on each individual's allegiance as reflected in acts or
even words. In many modem conflicts, including the present one, it is not unusual for persons to
hide their allegiance to the enemy for tactical or other purposes.
In the law ofwar, a "combatant" commonly refers to members ofan armed force." Members
of a state's armed force are usually clearly distinguishable from civilians, including other
government officials and employees. Members of the force normally wear uniforms and carry a
distinctive identification card or document. In an organization, such as a rebel group, with an
irregular armed force, the line between combatants and noncombatants is much less clear.P
There is precedent for treating U. s. citizens as enemy combatants. Exparte Quirin, 317U. S.
1,63 S.Ct. 2 (1942) was a case in which German soldiers smuggled themselves into the country, hid
uncertainty whether a state ofwar exists, depending on the level and nature of hostile activities. On
September 18, 2001, Congress' Joint Resolution (public Law 107-40, 115 Stat. 224) authorized the
President "to use all necessary force against those nations, organizations, or persons he determines
planned authorized, committed, or aided the terrorist attacks 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." Based on this and U.S. combat
operations in Afghanistan it may be concluded that the United States is at war with al Qaeda, the
organization deemed responsible for the September 11 attacks.
11 See Article 4A(1), Geneva Convention Relative to the Treatment of Prisoners of War, 1949.
12 This is one reason for the requirements for a recognized chain of command and distinctive
msigma,
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their uniforms and planned sabotage here before being caught." They were arrested, prosecuted for
what were regarded as crimes of war, convicted, and sentenced - six to death. The Court stated:
By universal agreement and practice, the law of war draws a
distinction between the armed forces and the peaceful populations of
belligerent nations and also between those who are lawful and
unlawful combatants. Lawful combatants are subject to capture and
detention as prisoners of war by opposing military forces. Unlawful
combatants are likewise subject to capture and detention, but in
addition they are subject to trial and punishment by military tribunals
for acts which render their belligerency unlawful.
Id. at 317 U.S. 1,30-31 (1942) (footnotes omitted). However, Quirin may not provide the clear
precedential value claimed by the government; there was a formal Congressional "Declaration of
War" against Germany, and all eight of the defendants were in fact uniformed members of the
German military who donned civilian clothing after surreptitiously entering the United States to
engage in sabotage.
Moreover, Quirin does not stand for the proposition that detainees may be held
incommunicado and denied access to counsel, since the defendants in Quirin were able to seek
review and they were represented by counsel. Since the Supreme Court has decided that even enemy
aliens within the United States are entitled to review, that right could hardly be denied to United
States citizens."
13 Quirin, of course, arose during a declared war against nations who were identified
enemies. Although two of the detainees claimed to have American citizenship, that claim was not
central to the case, and the Supreme Court had little difficulty in finding that Americans who
donned foreign uniforms and swore allegiance to a country at war with the United States could
lawfully be treated like other members of the armed forces of the enemy country
14 "The contention that enemy alien belligerents have no standing whatever to contest
conviction for war crimes by habeas corpus proceedings has twice been emphatically rejected by
a unanimous Court. In Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3, we held that status as
an enemy alien did not foreclose 'consideration by the courts of petitioners' contentions that the
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In In re Territo, 156 F.2d 142 (9
th
Cir. 1946), a U.S. citizen was captured in Italy while
serving in the enemy Italian army and held as a POW in the United States. The court upheld the
denial of his petition for writ of habeas corpus, stating, "all persons who are active in opposing an
army in war may be captured and except for spies and other non-uniformed plotters and actors for
the enemy are prisoners of war. "
Quirin and Territo arose in World War II. Little question existed about who the enemy was
or whether the Quirin defendants or Territo were members ofthe enemy armed forces . Thus, these
decisions turned not on whether the detainees were enemy combatants, but on whether enemy
combatants - even if U.S. citizens - could be detained and tried by the military. In the current
situation, these lines are less clear, both in general and in application in specific cases. For this
reason, the power to label a citizen an "enemy combatant" is potentially very broad.
B. Application of United States Law
Neither the Joint Resolution authorizing the use of force nor any laws enacted in response
to the terrorist attacks have addressed the detention ofUnited States citizens as enemy combatants.
That is an important consideration, since existing law calls such detention into serious question.
Title 18, §4001(a) ofthe United States Code provides that "[n]o citizen shall be imprisoned
or otherwise detained by the United States except pursuant to an Act of Congress." The legislative
history indicates that this statute applies in the case of any detention of U.S. citizens, and is not
limited to the control of civilian prisons:
Constitution and laws of the United States constitutionally enacted forbid their trial by military
commission.' Id., 317 U.S. at 25,63 S.Ct. at 9,87 L.Ed. 3. This we did in the face of a
presidential proclamation denying such prisoners access to our courts ." Johnson v. Eisentrager,
339 U.S. 763, 794-95, 70 S.Ct. 936, 951-52 (1950) (Justice Black dissenting).
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The twofold purpose of the amended bill is (1) to restrict the
imprisonment or other detention of citizens by the United States to
situations in which statutory authority for their incarceration exists
and (2) to repeal the Emergency Detention Act of 1950 (Title II ofthe
Internal Security Act of 1950) which both authorizes the
establishment of detention camps and imposes certain conditions on
their use.
House Report No. 92-116, p. 1435, April 6, 1971, Congo Record Vol. 117, (1971). The House
Report explained that specific repeal ofthe Emergency Detention Ad5 and that the "mere continued
existence" of the act had "aroused much concern among American citizens, lest the Detention Act
become an instrumentality for apprehending and detaining citizens who hold unpopular beliefs and
views." Id. at p. 1436.
The House Report also noted that the consti tuti onal validity ofthe Act was"subject to grave
challenge" because it allowed for detention merely if there was "reasonable ground to believe that
such person probably will engage in, or probably will conspire with other to engage in, acts of
espionage or of sabotage" and permitted the government to "refuse to divulge information essential
to a defense" which made the provisions ... for judicial review inadequate." Id.
Thus, 18 USc. § 4001(a) suggests that no U.S. citizens can be detained by the federal
government unless charged with violating some Act of Congress, a conclusion that finds strong
support in the only case addressing that statute to ever come before the United States Supreme Court,
Howe v. Smith." In Howe, Chief Justice Burger, writing for the Court, declared that "the plain
language of § 4001(a) proscribe[es] detention of any kind by the United States, absent a
15 The Act had been enacted at the beginning of the Korean War in order to allow for the
"apprehension and detention, during internal security emergencies, of individuals deemed likely
to engage in espionage or sabotage." Id. at 1436.
16 452 U.S. 473 (1981).
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congressional grant ofauthority to detain.?" The Howe Court thus read Section 4001(a) expansively
to apply to any andall U. S. citizens who were detained by the United States government, under any
circumstances.
Under United States law, the validity ofthe detention ofcitizen detainees may be challenged
by filing a writ of habeas corpus, which Blackstone aptly called "the great and efficacious writ, in
all manner of illegal confinement. "I S As the United States Supreme COUlt explained in Harris v.
Nelson, 394 U.S. 286, 291, 89 S.Ct. 1082, 1086 (1969):
The writ of habeas corpus is the fundamental instrument for safeguarding individual
freedom against arbitrary and lawless state action. Its pre-eminent role is recognized
by the admonition in the Constitution that: 'The Privilege of the Writ of Habeas
Corpus shall not be suspended * * *.' U.S.Const., Alt. I, s 9, cl. 2. The scope and
flexibility ofthe writ--its capacity to reach all manner of illegal detention--its ability
to cut through barriers ofform and procedural mazes--have always been emphasized
and jealously guarded by courts and lawmakers. The very nature ofthe writ demands
that it be administered with the initiative and flexibility essential to insure that
miscarriages ofjustice within its reach are surfaced and corrected.
The Court further commented:
There is no higher duty of a court, under our constitutional system, than the careful
processing and adjudication of petitions for writs of habeas corpus, for it is in such
proceedings that a person in custody charges that error, neglect, or evil purpose has
resulted in his unlawful confinement and that he is deprived of his freedom contrary
to law.
ld, 394 U.S. at 292, 89 S.Ct. at 1087.
17 Howe, 452 U.S. at 479 n.3.
18 3 W. Blackstone, Commentaries *131 (Lewis ed. 1902). See generally Fay v. Naja, 372
U.S. 391,399--415, 83 S.Ct. 822,9 L.Ed.2d 837 (1963).
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C. The Geneva Conventions
The four Geneva Conventions of 1949, to which the United States is a party, provide the
general framework for analysis ofthe grounds and procedures for detention and treatment of enemy
combatants. The treatment ofcaptured combatants during an armed conflict is covered by the Third
Geneva Convention Relative To The Treatment ofPrisoners ofWar, which defines prisoners ofwar
(PaWs) and sets forth the framework for their protection. Persons not entitled to POW status,
including so-called "unlawful combatants," are nevertheless entitled to protections provided by the
Fourth Geneva Convention Relative To The Protection of Civilian Persons in Time of War.
However, in cases in which a civilian has engaged in "acts hostile to the security of the State, such
individual shall not be entitled to claim such rights and privileges ... as would ... be prejudicial to the
security of such State."
Thus, certain lines of demarcation have been drawn that distinguish what is expected of
government in various circumstances. It is relatively clear that when we are at war fighting against
a declared enemy, as in World War Il for example, enemy prisoners who are captured on the
battlefield or in the combat arena are declared Prisoners of War and entitled to protection as such.
Those prisoners must be treated in accordance with the Convention and have rights under the
Convention. They are not criminal defendants; they have no right to counsel; they may be questioned
but need not provide any information other than name, rank serial number and date of birth.
Prisoners of war do have the right, subject to censorship for security purposes, to correspond with
others outside the prison.
Some individuals are captured during war on the battlefield or in the combat arena but do not
qualify as prisoners of war. Such persons are those who have committed a belligerent act and have
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been captured, but are not part of an organization that qualifies its members as Prisoners of War.
Under some circumstances the Fourth Geneva Convention permits detention of civilians in a war
zone.
Since it is not always clear whether an individual captured during a war qualifies as a
Prisoner ofWar, Article 5 ofthe Geneva POW Convention" provides that when there is doubt about
the status ofa captured individual, he or she will be treated the same as a Prisoner ofWar until such
time as his or her status has been determined by a competent tribunal." The Article 5 process,
however, is not directly relevant to our examination of the treatment of U.S. citizens who are
detained in this country.
D. International Human Rights Laws and Treaties
Any analysis of the treatment of enemy combatants must also consider a variety of other
recognized international agreements which are relevant to our analysis, particularly to the issue of
access to counsel. They include:
19 Article 5 states:
The present Convention shall apply to the persons referred to inArticle 4 from the
time they fall into the power of the enemy and until their final release and
repatriation.
Should any doubt arise as to whether persons, having committed a belligerent act
and having fallen into the hands of the enemy, belong to any of the categories
enumerated in Article 4, such persons shall enjoy the protection of the present
Convention until such time as their status has been determined by a competent
tribunal.
20 The United States has substantial experience with Article 5 of the Convention; for
example, it established Article 5 tribunals for thousands of individuals during the Gulf War. See
Operational LawHandbook, JA 422 (Charlottesville 1977) at 18-8.
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1. The Universal Declaration of Human Rights
The Universal Declaration ofHuman Rights, adopted in 1948, has been strongly supported
by the United States. Indeed, President Bush proclaimed December 9,2001 as "Human Rights Day
& Bill of Rights Week"ZI
Article 8 declares that everyone "has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights granted him by the constitution or by law"
and Article 9 provides that no one "shall be subjected to arbitrary arrest, detention or exile."
2. Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment
Principle 17(1) of the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment, adopted by the United Nations General Assembly in 1988, requires
that "[a] detained person shall be entitled to have the assistance of a legal counsel. He shall be
informed of his right by the competent authority promptly after arrest and shall be provided with
reasonable facilities for exercising it." More important, Principle 18 provides:
1. A detained or imprisoned person shall be entitled to communicate and
consult with his legal counsel.
2. A detained or imprisoned person shall be allowed adequate time and
facilities for consultation with his legal counsel.
3. The right of a detained or imprisoned person to be visited by and to
consult and communicate, without delay or censorship and in full
confidentiality, with his legal counsel may not be suspended or
21 The Proclamation, issued for the Declaration's 53rd anniversary, stated: "The terrible
tragedies of September 11 served as a grievous reminder that the enemies of freedom do not
respect or value individual human rights. Their brutal attacks were an attack on these very
rights." President Bush called on "the people of the United States to honour the legacy of human
rights passed down to us from previous generations and to resolve that such liberties will prevail
in our nation and throughout the world as we move into the 21st century."
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restricted save in exceptional circumstances, to be specified by law or
lawful regulations, when it is considered indispensable by a judicial
or other authority in order to maintain security and good order.
3. International Covenant on Civil and Political Rights (ICCPR)
The International Convention on Civil and Political Rights was adopted and opened for
signature, ratification and accession by U.N. General Assembl y resolution 2200A (XXI) on
December 16, 1966, and became effective in 1976, following ratification by the necessary number
of states. 22 Article 14 of the TCCPR describes certain standards and procedures that should be used
in all courts and tribunals."
IV. DISCUSSION
The attack on the United States on September 11,2001- as well as other attacks on United
States embassies, personnel , and property abroad - raise new and difficult questions for our legal and
political systems. Once it began, the hijacking ofplanes and wanton and willful taking oflives could
not go unanswered. The openly declared goal of AI Qaeda to inflict a holy war upon the United
States could not go unrecognized. No President or Congress could ignore the threat and pretend that
22 G.A. res. 2200A (XXI), 21 UN. GAOR Supp. (No. 16) at 52, UN. Doc. A/6316 (1966) ,
999 UN.T.S. 171.
23 At the American Bar Association Midyear meeting in February 2002, the House of
Delegates considered and adopted a Report and Recommendation relating to the November 13,
2001 , Military Order Regarding "Detention, Treatment, and Trial of Certain Non-Citizens in the
War Against Terrorism. " Recommendation 6 urged the President and Congress to assure that the
law and regulations governing any tribunal would " [r]equire compliance with Articles 14 and
15(1) of the International Covenant on Civil and Political Rights, including but not limited to,
provisions regarding prompt notice of charges, representation by counsel of choice, adequate
time and facilities to prepare the defense, confrontation and examination of witnesses, assistance
of an interpreter, the privilege against self-incrimination, the prohibition of ex post facto
application of law, and an independent and impartial tribunal , with the proceedings open to the
public and press or , when proceedings may be validly closed to the public and press, trial
observers, if available, who have appropriate security clearances."
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further attacks should not be expected.
The need for action was undeniable. Congress authorized the President to respond. The
United Nations recognized the need for the United States to act in self-defense. Accordingly, the
President committed American armed forces to do battle with the Taliban and AI Qaeda in
Afghanistan. Whether this was a declared war or not, it was approximately as clear who the enemy
was in Afghanistan as in previous conflicts: namely, the enemy were the Taliban fighters who
repressed the people ofthat country and the AI Qaeda forces who benefitted from Taliban protection
while providing substantial resources to support the Taliban forces .
Many suspected Taliban and AI Qaeda forces or supporters who were captured in battle have
been detained, and questions about those detainees abound. Most knowledgeable people recognize
that they are difficult questions to answer and involve the law of war, international law, and treaty
obligations. Even so, there is concern among many Americans about the prudence, ifnot the legality,
of prolonged incommunicado detention of a large group of people far removed from the battle in
which they were captured.
As a society, we know that America is a land in which dissent is a fundamental right, but we
take pains to assure that dissent is not confused with treasonous acts. We do not lightly presume that
Americans, even those who protest and complain about their country's policies, are "enemies."
If an American citizen who is detained as a Prisoner of War or as an illegal combatant is
subsequently prosecuted for treason or for another crime against the United States, that citizen will
have the benefit of the constitutional protections afforded all defendants in American criminal
prosecutions. The right to counsel , the privilege against self-incrimination, the right to jury trial and
other familiar rights will attach once prosecution commences.
17
OCIO-E0000996
There is reason for confidence, therefore, that an American who is charged with a crime
against the United States , even one involving the taking up arms against the United States, will
receive the full panoply of rights traditionally afforded criminal defendants. Neither the Executive
nor the Congress has sought to interfere with the exercise of these rights, and there is no indication
that Due Process will be denied those charged with federal crimes.
But, there is genuine reason for concern about a President's - or anyone's - power to
unilaterally declare that an American citizen who is arrested in the United States or elsewhere far
from any battlefield or combat arena is part of the enemy and thus may be treated in the same way
as enemy seized in battle. Indeed, it is both paradoxical and unsatisfactory that uncharged U.S.
citizen detainees have fewer rights and protections than those who have been charged with serious
criminal offenses, like John Walker Lindh, a U.S. citizen, or foreign nationals like Zacarias
Moussaoui, the alleged "20
th
hijacker" and Richard Reid, the alleged "shoe bomber."
The war on terrorism requires that new questions be asked. With whom are we at war? Who
defines the enemy? How does one conduct war against individuals or groups of individuals who
swear no allegiance to any nation and whose affiliations to each other are not always clear? What
qualifies an individual as a combatant? Who has the right to negotiate to end the war? Who defines
how long the war will last? Where is the war actually being fought?
Without knowing the full and complete answers to these broad questions, it is not clear how
to answer the narrower questions: May the Executive detain an American citizen or any other person
lawfully in the United States as an "enemy", a "combatant", or an "enemy combatant" on the basis
of a unilateral determination that the individual is "connected to" , a "supporter of' ; a "member of' ;
or an "aider, abettor or coconspirator of' an individual or group that has participated in an attack on
18
OCl 0-£0000997
the United States or expressed support for such an attack?
What standard - reasonable suspicion, probable cause, etc. - applies to such detention? What
time limit, if any, applies to such detention? Is there any judicial review available to a detainee? If
a decision is made to detain, must that decision be periodically reviewed? Does a detainee have a
right to consult with counsel with respect to detention? While being detained?
U.S. courts have generally deferred to militaryjudgment concerning POW status and related
questions. SeeJohnsonv. Eisentrager, 339U.S. 763 (1950); Hamdiv. Rumsfeld, _F.3d_Ouly
12, 2002).24 This deference flows from the President's and Congress' primary responsibility for
foreign affairs and the prosecution ofwar, and from the potential damage ofjudicial interference in
military operations. However, the same is not true in circumstances involving U.S. citizens not on
the battlefield orin the zone ofmilitary operations. See Iixparte Milligan, 71 U.S. 2 (1866); Duncan
v. Kahanamoku, 327 U.S. 304 (1946). 25
Moreover, the federal judiciary has little experience with detention of Americans as enemy
combatants outside a declared war, with nations as enemies, and with captured soldiers . Ex parte
Milligan and Ex parte Quirin can be cited for and against judicial involvement in Executive
determinations as to combatants, but the reality is that neither decision addresses whether there can
24 See also Ex parte Quirin, 317 U.S. 1 (1942);In re Territo, 156 F.2d 142 (9th Cir. 1946).
25 It should be noted that paws are entitled to and generally can communicate with
outsiders . Through such communications they can gain the services of an attorney who can seek
relief in an appropriate court . POWs may also communicate, through their chain of command,
with representatives from neutral states and international organizations, and in this way raise
issues concerning their detention.
19
OCIO-E0000998
be detentions of Americans or lawful residents without some form ofjudicial review."
v. RECOMMENDATIONS
We fully recognize that these are very difficult and complex issues. The stark reality is that
there is no universal consensus as to the right answers to either the broad or the narrow questions
now facing our nation. With the disquieting recognition that the battles of the future could focus on
individuals and groups spread among as well as on nations themselves, we nonetheless believe that
there are certain principles that should and could receive support from those who appreciate the need
to assure that we do not lose our sacred liberties and freedoms while we fight to save them.
The TaskForce therefore recommends that the following principles be followed with respect
to the treatment of U.S. citizens declared to be enemy combatants:
1. The Administration Should Explain the Basis and Scope ofits Authority to Detain U.S.
Citizens as Enemy Combatants
The administration should explain, more fully and formally than ithas, the basis for detaining
someone as an enemy combatant, especially Americans seized far from any recognized battlefield
or combat zone.
This is important as a matter of domestic and international law and public support. Actions
taken today will serve as precedents forever. Regardless of the wisdom and good faith with which
actions are taken, detention without process in a few cases may be used as justification by others for
26 History has not been kind to the Japanese internment cases, which upheld detention of
American citizens and lawful residents. Judicial review was ultimately provided, internment was
sustained, and the decisions have been questioned as much as any in American law. Indeed,
Congress passed the Civil Liberties Act of 1988 "to provide a Presidential apology and symbolic
payment of $20,000.00 to the internees, evacuees, and persons of Japanese ancestry who lost
liberty or property because of discriminatory action by the Federal government during World
War II." See http://www.usdoj.gov/kidspage/crt/redress.htm.
20
OCIO-E0000999
much broader use of such detention.
By better explainingthe rationale for such detention (even recognizing that security concerns
may limit what can be made public), the government can win support - assuming its reasoning is
sound - and can cabin the authority should others try to extend it inappropriately. There may be
substantial reasons for such detentions that would be consistent with domestic and international law,
but it is also possible that the case for detention is problematic and might create a dangerous
precedent.
The Administration has not yet attempted to explain what procedures it believes should be
required to assure that detentions are consistent with Due Process, American tradition, and
international law. It cannot be sufficient for a President to claim that the Executive can detain
whomever it wants, whenever it wants, for as long as it wants as long as the detention bears some
relationship to a terrorist act once committed by somebody against the United States. Short of such
a claim, what are the limits?
2. Congress Should Establish Clear Standards and Procedures Governing Detention of
United States Citizens
Congress, in coordination with the Executive branch, should examine the issue of detaining
US. citizens as enemy combatants, and should enact legislation establishing clear standards and
procedures governing the detention and treatment of US. citizens detained as enemy combatants.
This is particularly necessary in light of our discussion of 18 US.c. §4001(a), supra.
The Task Force acknowledges the need to give proper deference to the Executive Branch in
times ofcrisis, but neither the Congress nor the Courts should hesitate to question actions which may
impact upon or violate long cherished constitutional principles. As the Washington Post recently
21
OCIO-EOOOIOOO
observed in an editorial :
. . . the government's actions in this latest case cut against basic
elements of life under the rule of law. If its positions are correct,
nothing would prevent the president -- even in the absence ofa formal
declaration of war -- from designating any American as an enemy
combatant. Without proving the correctness of the charge before a
court, the military could then detain that person forever. And having
done so, it could prevent that detainee from hiring a lawyer to argue
that the government, in fact, has it all wrong. If that's the case,
nobody's constitutional rights are safe. The administration owes the
country a more thoughtful balance; Congress's role -- the patriotic
thing to do -- is to help find it.
Editorial, "Detaining Americans" Washington Post, Tuesday, June 11,2002, Page A24.
Congress should also maintain continuing oversight of detention of U.S. citizens to assure
that such detentions are consistent with DueProcess, American tradition, and international law," As
Sen. Russell Feingold (D-WI) observed during a United States Senate Judiciary Committee
hearing:"
...1 do think we need to learn a lesson from this history to question our
government when it appears to be overreaching. Such questions are
not unpatriotic and should not be viewed as an inconvenience by the
Executive Branch. They are a crucial tool for Congress to play its
constitutional role in protecting the great heritage of this country and
the rule of law.
27 As part of its oversight authority, Congress should consider requiring periodic reports from
the Executive, and should include a provision in the proposed Homeland Security Department
providing the Inspector General with specific authority to investigate allegations regarding denial
of access to counselor violations of constitutional rights arising from continued detentions.
28 Senate Committee on the Judiciary, December 4,2001,
http://judiciary.senate.gov/member_statement.cfm?id=128&witjd=85
22
OCIO-EOOOIOOI
3. Citizen Detainees Should Have Access to Judicial Review to Challenge Their Detention
As set forth above, United States citizens who are detained by the Government have a right
under the Constitution to seek release from their detention through a petition for writ of habeas
corpus, a fundamental right which Congress has not suspended. Citizen detainees who have not been
charged with violations ofUnited States criminal laws or the lawofwar should therefore be afforded
a prompt opportunity for judicial review of the basis for their continued confinement.
4. Citizen Detainees Should Not be Denied Access to Counsel
The most complex issue examined by the Task Force is that of access to counsel. We agree
that a United States citizen detainee should not be denied access to the courts and he or she should,
at the very least, have the right to contact an attorney in order to seek habeas corpus relief.
We also agree, however, that the 6
th
Amendment right to counsel does not technically attach
to uncharged enemy combatants, and we recognize that, depending on the geographical location and
the state of hostilities, there may be circumstances in which providing a detainee with access to
counsel could be unwise, impractical, or dangerous."
While we are mindful of such concerns, we do not believe that citizens detained within the
United States, far from the battlefield, fall within that category. Indeed, the right to prompt judicial
review may well be hollow unless citizen detainees are afforded meaningful access to counsel and
to the effective assistance of counsel in order to appropriately challenge their detention.
. Government concerns that affording access to counsel may impede the collection of
intelligence are not, in our view, so compelling that they justify denial of access to assistance of
29 For example, no reasonable person would suggest that the battle should pause while a
combatant captured and detained on the battlefield is granted a visit from his or her lawyer.
23
OCIO-EOOO1002
counsel. Nor are concerns that counsel might be used by detainees to facilitate communications with
others. We have confidence that our nation's lawyers can provide effective representation without
breaching security. When government practices result in indefi nite incommunicado detention, they
must be weighed against the requirements ofthe rule oflaw and the sacred tradition ofproviding our
nation's citizens with full Due Process rights .
5. Consideration Should be Given to the International Impact of Our Treatment of
Enemy Combatants
Finally, we urge the Executive and Legislative branches, in establishing and implementing
procedures to govern the detention of u.s. citizens held as enemy combatants, to give full
consideration to the impact of its policies as precedents in the use of international legal norms in
shaping other nations' responses to future acts of terrorism.
VI. CONCLUSION
The Task Force respects and supports President Bush and his administration in their efforts
to root out terrorism and assure our homeland security. Of course, we should have the means to
prevent more attacks like those of September 11. At the same time, there must be safeguards to
protect the innocent and prevent possible abuses of power.
Since our Nation's founding, it has been a bedrock principle of our Democracy that is it the
duty of the courts to protect the constitutional rights of citizens from overreaching government
authority-even when that authority is well -intentioned, and regardless of how unpopular or hated
those citizens might be. "Only by zealously guarding the rights of the most humble, the most
unorthodox and the most despised among us can freedom flourish and endure in our land.,,30
30 Bridges v. Wixon, 326 U.S. 135, 166 (1945) (Justice Murphy, concurring.)
24
OCIO-EOOOI003
We would do well to heed the admonition ofJusticeMurphy in Duncanv. Kahanamoku, 327
u.s. 304, 335:
Moreover, we must be on constant guard against an excessive use of
any power, military or otherwise, that results in the needless
destruction of our rights and liberties. There must be a careful
balancing of interests. And we must ever keep in mind that 'The
Constitution of the United States is a law for rulers and people,
equally in war and in peace, and covers with the shield of its
protection all classes of men, at all times, and under all
circumstances.' Ex parte Milligan, supra, 4 Wall. at pages 120, 121.
We are a great nation not just because we are the most powerful, but because we are the most
democratic. But indefinite detention, denial of counsel, and overly secret proceedings could tear at
the Bill of Rights, the very fabric of our great democracy.
The ABA Task Force on Treatment of Enemy Combatants will continue to review and
analyze these issues, and the American Bar Association stands ready to be of assistance in any way
to help establish standards and procedures to ensure that we do not erode our cherished
Constitutional safeguards and that we strengthen the rule of law."
We must get this right. The people of this great country deserve no less.
31 As Justice Brandeis warned: "Experience should teach us to be most on our guard to
protect liberty when the government's purposes are beneficent. ... The greatest dangers to liberty
lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
Olmstead v. United States, 277 U.S. 438,479 (1928) (Brandeis, J., dissenting).
25
OCIO-EOOOI004
AMERICAN BAR ASSOCIATION
TASK FORCE ON TREATMENT OF ENEMY COMBATANTS
SUMMARY OF RECOMMENDATIONS
1. The Administration Should Explain the Basis and Scope of Its Authority to
Detain U.S. Citizens as Enemy Combatants
2. Con::ress Should Establish Clear Standards and Procedures Govemin::
Detention of United States Citizens
3. Citizen Detainees Should Have Access to Judicial Review to Challen::e Their
Detention
4. Citizen Detainees Should Not be Denied Access to Counsel
5. Consideration Should be Given to the International Impact of Our Treatment
of Enemy Combatants
26
OCIO-EOOO1005
ABA Task Force on Treatment of Enemy Combatants
NEAL R. SONNETT is a past chair ofthe ABA Criminal Justice Section, which he now represents in the ABA House
of Delegates, and is a member of the ABA Task Force on Gatekeeper Regulation and the Profession. He is vice-
president of the American Judicature Society and past president of the National Association of Criminal Defense
Lawyers. The NationalLawJournal profiled him as one ofthe "Nation's Top White Collar Criminal Defense Lawyers"
and selected him three times as one of the "100 Most Influential Lawyers InAmerica." He is a former Assistant United
States Attorney and Chief of the Criminal Division for the Southern District of Florida.
Members
JOHN S. COOKE retired fromthe United States Army in 1998 as a Brigadier General after twenty-six years ofservice
in the Judge Advocate General's Corps. He served as Chief Judge, U.S. Anny Court of Criminal Appeals, Commander,
U. S. Anny Legal Services Agency, Judge Advocate (senior legal advisor) for U. S. Anny forces in Europe, and Deputy
Commandant, The Judge Advocate General's School. He is outgoing chair of the ABA Standing Committee on Armed
Forces Law and served on the ABA Task Force on Terrorism and the Law.
EUGENE R. FIDELL is president of the National Institute of Military Justice and a partner in the Washington, D.C.
finn of Feldesman, Tucker, Leifer, Fidell & Bank LLP. He served on the Code Committee on Military Justice and the
Advisory Board on the Investigative Capability ofthe Department of Defense, and has taught Military Justice at Yale
Law School. He is coeditor (with Dwight H. Sullivan) of Evolving Military Justice (Naval Institute Press 2002) and
edited NIMJ's forthcoming Annotated Guide to the Procedures for Trials by Military Commissions (LEXISINEXIS
Matthew Bender 2002).
ALBERT J. KRIEGERis a nationally renowned criminal defense trial attomey now in his 54th year of practice. He
is the incoming chair of the ABA Criminal Justice Section and a past president of the National Association of Criminal
Defense Lawyers, which he represents in the ABA House of Delegates. He served two terms on the ABA Criminal
Justice Standards Conunittee, and he has been honored by local, state, and national bar associations throughout the
nation for his lifetime of contributions to the adversary system of criminal justice.
STEPHEN A. SALTZBURG is Howrey Professor of Trial Advocacy, Litigation and Professional Responsibility at
the George Washington University Law School. He served as Associate Independent Counsel in the Iran-Contra
investigation, and is a former Deputy Assistant Attorney General in the Criminal Division. He serves in the ABA House
of Delegates from the Criminal Justice Section and is on the Council of the Litigation Section. He served on the ABA
Task Force on Terrorism and the Law, and is a member of the ABA Task Force on Gatekeeper Regulation and the
Profession.
SUZANNE SPAULDING currently serves as chair of the ABA Standing Comtnittee on Law and National Security.
She has served as Executive Director of the National Commission on Terrorism (the "Bremer Commission") and
Executive Director of the Commission to Assess the Organization of the Federal Government to Combat the
Proliferation of Weapons of Mass Destruction She is a former Deputy Staff Director and General Counsel for the
Senate Select Committee on Intelligence; and a former Assistant General Counsel for the Central Intelligence Agency.
27
OCI 0-EOOO1006
OlLOW} ~
etHE T
15 W(TH HELD
From:
Sent:
To:
Subject:
Attachments:
Dear John:
Rivkin, David
Wednesday, January 08, 200303:54PM
Yoo,JohnC
A Response toHolly Burkhalter.doc
Here is our Burkhalter reply. It has already gone into the Post.
It seems that they are favorably inclined. Let me know what do you think?
I should be able to tweak it a bit, if necessary.
Best regards,
David
~ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL
OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN
INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT
FROM DISCLOSURE UNDER APPLICABLE LAW.
If the reader of this message is not the intended
recipient, or the employee or agent responsible for
delivering the message to the intended recipient, you are
hereby notified that any dissemination, distribution,
forwarding, or copying of this communication is strictly
prohibited. If you have received this communication in
error, please notify the sender immediately bye-mail or
telephone, and delete the original message immediately.
Thank you.
***********************************************************
OCIO-EOO14527
A Response to Holly Burkhalter
By
David B. Rivkin, Jr. & Lee A. Casey*
Holly Burkhalter's recent OpEd, "No to Torture," badly misses the mark. She accuses
U.S. military and intelligence services of torturing captured a1 Qaeda and Taliban operatives, of
denying them oftheir legal rights under the Geneva Convention, and implies that the United
States is responsible for atrocities allegedly perpetrated by its Afghani allies. By permitting
these outrages, Ms. Burkhalter concludes, the Bush administration has "degraded itself, along
with the intemationa11aw norms it flagrantly violates, and "invites the revulsion of the entire
world." She is wrong, legally and factually, on all counts.
The United States has not granted the rights of honorable prisoners ofwar to the
Quantanomo Bay detainees because they are neither legally nor morally entitled to those rights.
amy lawful combatants, those who at a minimum conduct their operations in accordance with
the laws and customs ofwar, are entitled to the status of "prisoners ofwar" under the Geneva
.Convention. By repudiating the most basic requirements ofthe laws ofwar - first and foremost
the prohibition on deliberately attacking civilian populations - the members of a1 Qaeda, and
their Ta1ibanallies, have put themselves beyond the protections ofthe Geneva Convention.
Article .17 of that treaty, which Ms. Burkhalter so enthusiastically invokes, is inapplicable to the
Guantanomo detainees and in no way limits the right of the United States to interrogate them.
Moreover, even assuming that the Guantanomo detainees have been subjected to the
interrogation methods Burkhalter claims, including painful bindings, contorted positions, sleep
deprivation, piercing noises and even beatings - a claim that a1 Qaeda members are trained to
make and that has been far from substantiated - these do not, as a matter of law; constitute
torture. Torture, as explained by the European Court of Human Rights in a 1978 case involving
OCIO-EOO14528
the "five techniques" used by Britain to interrogate IRA suspects, requires "suffering of
particular intensity and cruelty." The use of sleep or sensory deprivatio.n, uncomfortable or
painful postures, and even a level ofphysical abuse, does not meet this test. Indeed, to call these
practices torture ultimately trivializes the torture that does take place in so many areas of the
world. And, contrary to Burkhalter's assertion that, legality aside, nothing of value can be
learned from such aggressive interrogations, a number of senior Administration officials,
including CIA Director Tenet, have stated publicly that interrogations of captured enemy
belligerents have been invaluable and resulted in numerous captures of senior al Qaeda leaders.
It is also worth noting that the United States has a long and distinguished record of
compliance with the laws and customs of war, including the all important issues bearing upon the
treatment ofcaptured enemy belligerents. The U.S. armed forces take far more care in the
training, and policing, of their personnel than another other country, now or in the past. Lawyers
permeate the entire American chain-of-command and legal input is sought, and before going
forward with any decision, legal input is sought. To the extent that the Administration has
concluded that aggressive interrogation techniques are justified in these circumstances, it will
have done so with the benefit of the most well-Iawyered military and civilian command structure
in history, and in the knowledge that U.S. law itself criminalizes the torture ofprisoners.
Burkhalter's suggestion that the United States is responsible for the actions of its allies,
whether in Afghanistan, or elsewhere, also is incorrect. The evident murder of hundreds of
Taliban prisoners in and around Shebergan was a shocking atrocity, and one that Mr. Karzi's
government must address, and soon. However, there is no evidence that U.S. forces either knew
about these actions in advance, or that they were in any position to do anything about them. The
exigencies ofwar make strange bedfellows, and the United States has found itself allied to more
. DCID-EOO14529
than one monster in its history - uncle Joe Stalin most readily comes to mind. International law,
however, does not impose responsibility for the actions of such men unless a very high level of
control is involved. In the most important international precedent in this area, the World Court
ruled, in fact, that - despite the considerable U.S. financial, intelligence, logistical and weapons
support provided to the Nicaraguan Contras - the United States was not in "effective control" of
that group and, therefore, was not responsible for its actions.
In addition to legal arguments, Ms. Burkhalter also suggests that any U.S. failure to treat
captured al Qaeda and Taliban members with all of the honor and dignity of lawful prisoners of
war will endanger our own troops who may be captured in the future. Of course, as she
effectively concedes, al Qaeda does not take prisoners in any case. The idea, however, that
granting them rights and privileges they do not merit will give the United States some greater
ability to demand Geneva-level treatment for captured Americans in other contexts is quixotic in
the extreme. The armed forces of the United States, who do meet the requirements for lawful
. combatant status, already are legally entitled to the protection of the Geneva Conventions. Yet,
even this binding legal obligation -let alone the United States' unilateral compliance and the
anemic efforts of the International Committee of the Red Cross - was manifestly insufficient to
guarantee even minimally humane treatment for U.S. POWs during the Korean and Vietnam
conflicts.
All of this, ofcourse, answers only the legal and practical issues involving the use of
aggressive interrogation methods by the United States. It does not answer the equally important
moral question ofwhether the world's leading democracy should resort to unpleasant, and even
harsh, treatment for its enemies in the war on terror. That, however, can only be answered in
light ofthe certain knowledge that the detainees in question are part ofan organization dedicated
DCID-EOO14530
to the murder of as many innocent civilians as possible, preferably on a mass scale. The
fundamental distinction between lawful armed forces, like those of the United States, and
unlawful combatants such as al Qaeda and the Taliban, and the harsh treatment reserved for the
latter, is not some legal technicality used by the Bush Administration to escape inconvenient
international obligations. It is, in fact, partand parcel of the centuries' long efforts by civilized,
law-abiding states to eliminate private warfare, and to ensure that civilian populations are
protected by requiring that every armed force follow certain minimum requirements. It is, in
fact, at the very core of the body ofintemational humanitarian law that Ms. Burkhalter claims to
defend.
* Messrs Rivkin & Casey are partners in the Washington, D.C. office of Baker &Hostetler
LLP. They both served in the Justice Department under Presidents Reagan and George H.W.
Bush.
OCIO-E0014531
.from:
Sent:
To:
Subject:
Philbin, Patrick
Thursday. August 01, 2002 09:41 AM
'bLCo}
I stopped by, but you had stepped out for a minute. Please swing by my office when you have a
chance -- I have a couple questions I'd like to talk about.
Patrick F. Philbin
Deputy Assistant Attorney General
. Office of Leqal Counsel
(202) 305-8524 . (fax) bOo)
OCIO-E0040552
From:
Sent:
To:
Subject:
Philbin, Patrick
Friday, July 26, 2002 05:56 PM
Collins, Dan; Yoo, John C
RE: Monday's meeting
I didn't know we had a me eting l ate r t hat da y. I'm f r e e anytime Monday mor ni ng, t hough .
- --- -Original Me s s age- - - --
From: Col l ins , Dan
Sent: rriday, July 26, 2002 5: 53 PM
To: Yoo, John C; Philbin, Patr ick
SUb jec t : Monday's meeting
Importance: High
What time would work for yo u Monda y morning t o di scus s t he meeting at the WH we have later that day?
I think it is imperative t ha t we talk beforehand. My s c hedul e is flexi ble Monday morning. Thanks.
- - Da n
OCIO-E0041024
From:
Sent:
To:
Subject:
Philbin, Patrick
Wednesday, July 31,200210:02 AM
Murray, PatrickB
meeting at 2:30
John Yoo asked me t o l et you know t hat I can go t o the meeting at the White House at 2 :30 wi th you .
Where s hould I meet you to he ad over?
Pa trick f . Philbin
Deputy Assistant At t or ney General
Office of Leaal Counsel
(202 ) 305-8524 (f ax)
OCIO-E0041087
Yoo, JohnG; yoo:------_
Re: war powers response
Yoo UC Response 3.doc
From:
Sent:
To:
cc:
Subject:
Attachments:
John Choon Yoo
Friday. April26, 2002 01 :27, AM
---_. . . ~
blCo)
bUD)
_. b t ~ )
A r edline version of the changes is attached. I've also added the
conclusion. Sorry about the delay, and I appreciate your patience.
Best wishes ,
John Yoo .
much time addressing things t hat you might change i n
It has
the changes you 're making to your
the primary edit phase, s o it
could forward the changes you've
and hope to have it done with a day or
I 'am actually almost finished with it;
4
is at horne, so that anything you send won't
has not Undergone a close read to make sure
I could e-mail you what I have now.
Oriainal Messaae
b ( ~ )
b(Co)
_____.' wrote:
bt(P)
b ( ~ l From:
Date: Wednesday, Apr il 24, 2002 6: 56 pm
Subject: Re: war powers r esponse
> That ' s great- -as long as we have it by tomorrow evening, we should
> be able
> to incorporate the changes before the author response.
>
> Take care.
>
>.-
>
> On Wed, 24 Apr 2002, John Choon Yoo wrote:
>
~ ~ _: b(Co)
> > Thanks for the message.
> I've got a few
> > more hours of work on it,
> so. Is that
> > okay? Otherwise,
> all the parts
> > moved around, but
> everything lined .
> > up r i ght .
> >
> > My mailing address
> get irradiated'
> > and melt. It's
> >
> > John Yoo
> >
>. >
> >
> >
> >
> > > Professor Yoo,
> > >
> > > Just following up r egarding
> > > article. We're currently in
> would be
> > > tremendously helpful if you
> already made
> > > so that we might incorporate them. Additionally, while I
> forwarded your
> > > original response to Professor Ramsey to cons i de r in writing
> his brief
> > > reply, I'd l ike to keep him as up-to-date as possible so that
> he doesn 't
> > > spend too
>. any event.
OCIO-H0312874
> > >
> > > Also, please provide us with a mailing address to use for
> communications> > within the next month or so. We just need to
> know where to send copyright
> > > agreements, etc.
> > >
> > > Thanks, and take care.
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OCIO-H0312875
WAR AND CONSTITUTIONAL TEXTS
John C. Yoo'
In a series of'articles, 1 have criticized the view that the original
understanding of the Constitution requires that Congress provide its
authpti2a:tiO.l1 befote the United States can engage in military hestilities.'
This "pro-Congress" position ignores the constitutional text and structure,
errsIn interpreting the ratification history of the Constitution, and cannot
accoumforthe practice of the three branches of government. Instead of-the
strict Congress-first process advocated by scholars such as Louis Henkin,
John Halt Elv, Louis Fisher, Michael Glennon, and Harold Koh, I have
argued thaUlie Constitution creates a flexible system of war powers. That
sYsteltl the President with significant initiative as Commander-in-
Chief, while reserving to Congress ample authority to check: executive
policy through its power' of the purse In this scheme. the Declare War
Cl,lllse ecnferson Congress a juridical power. one that bothdefines the
state ofillJernatlollallegal relations between the United States and another
countryand-triggersdomestic constitutional authorities duringwartime.s
IiI Texiualism and War Powers,' Professor Michael D. Ramsey agrees
with much of my work, and does me the honor of recognizing me asa
leaClingptopotlent of a pro-executive theory of war powers. He agrees that
pro-Cl;Hlgtess scholars have not advanced a convincing textual defense of
their Views. and that they have been unable to explain the historical
evidence that favors presidential control over the initiation of military
hostilities. Be admits that pro-Congress scholars have failed to reply to my
criticism oftheir historical arguments. 'To a modern originalist, advocates
, Professor of Law, University of California at Berkeley School of Law (Boalt Hall) (on
leave); Deputy Assistant Attornev General, Office of Legal Counsel, United States
Department of Justice, The views expressed here are those of the author alone and do not
represent the views of the Department of Justice. I express my deep appreciation for the
advice and assistanceof James C. Ho in preparing this response. Jack Goldsmith. John
Manning, and SaiPrakash provided helpful comments on the draft.
i See JohnC. Yoo, The Continuation of Politics by Other Means: The Original
Understanding of War Powers, 84 CaL L Rev. 167. 178_79 (1996); John C. Yoo, Clio at
War: The Use and Misuse of History in the War Powers Debate, 70 U. Colo L Rev. 1169
(1999): JohnC, Yeo, Kosovo, War Powers. and the Multilateral Future. 148U. Pa, L Rev.
1673 (2000).
<See, e.g., Louis Fisher, Presidential War Power 185-206 (1995); John Hart ElY, War and
Responsibility: Constitutional Lessons ofVictnarn and Its Aftermath3-5 (1(93); Michael J.
Glennon, Constitutional Diplomacy 80-84 ( 19(0); Louis Henkin, Constitutionalism.
Democracy, and Foreign Affairs 109(1990); Harold HongiuKoh, The National Security
Constitution: SharingPower After the Iran-Contra Affair 158-61 (1990); William M.
Treanor, Fame, the Founding, and the Power to Declare War, 82 Cornell 1. Rev. 695. 699-
700 (1997).
3 Yoo, Continuation ofPolitics at 204-08. 242-50 (cited in note I).
Michael D. Ramsey, Textualism and War Powers, 69 U. Chi. L. Rev. _ (20Q2)
OCIO-H0312876
2 WARA:VD TEU
of congressional war power must show how the constitutional language
gives Congress broad war power (not merely that some framers later
claimed it did). To date, advocates of congressional war power have
entirely failed in this endeavor.?s Professor Ramsey even concedes that by
the eighteenth century, declarations of war were unnecessary to authorize
the conduct of military hostilities. Professor Ramsey acknowledges that
the pro-Congress position suffers from a "serious textual embarrassment."
because the constitutional text only grants Congress "the power 'to declare
war,' not the power 'to authorize hostilities,' and it is not immediately clear
why the two should be equated. "6
Nonetheless, Ramsey believes that the pro-Congress school has things
right. In fact, his interpretation of the Constitution mirrors the view of the
rest of the pro-Congress camp: Congress must approve all uses of military
force by the President, unless the nation is acting in its self-defense.
because Congress enjoys the sole authority to declare war. Textualism and
War Powers not only revives the usual pro-Congress reading of the Declare
War Clause, but it also relies on the same interpretation of the drafting of
the Clause repeatedly brought forth by pro-Congress scholars. Ramsey
saves the pro-Congress approach from its "serious textual embarrassment"
simp1", by repeating that the Declare War Clause serves as the exclusive
authority to decide whether to begin hostilities.
So what new contribution does Professor Ramsey offer? It is the
claim that the pro-Congress view is supported by the writings of some
eighteenth century European legal writers, who allegedly believed that war
could be declared either by action or by deed. The core of Professor
Ramsey's argument is that because these writers seemed to believe that
formal declarations of war served no real purpose under intemational law,
their rhetorical use of the phrase "declaring war" must have meant
beginning hostilities. either through a deelaration or a simple attack. From
this logic, Professor Ramsey asserts that the text of the Declare War Clause
therefore must vest Congress with the exclusive power to commence
military hostilities, except in cases where the United States is attacked.
Professor Ramsey has reached the very same destination as Ely. Glennon.
Henkin. or Koh; he has only added an extra twist in the road.
As a result, Professor Ramsey's addition to the pro-Congress argument
5 Id. at 15.
(, Id. at 7. Odell)', Ramseygoes to great lengthsto createdaylightbetweenhis reading. ofthe
meaningof a declarationof war duringthe eighteenthcenturyandmine. He reads my work
as concluding that a declaration of war was "prerequisiteto the invocation of the laws of
war," id. at 42, but admitsthat elsewhere I viewthe declaration as a notificationof an
existinglegal status. In fact, I recognized that differentinternational authoritiesrecognized
that a d'ecl;TI'ation couldperformeither role: but the important point was that neither function
encompassed the idea that a declaration wasnecessary to commence hostilities. Yoo.
Continuation ofPolitics at 207-08(cited in note 1'l.
OCIO-H0312877
WAR A ~ V D COXS·TITUTlOiY:J.L TEW 3
does not advance a new understanding of the constitutional text and
structure. nor its history. In fact, he passes over the former, despite his
claim of providing a textual theory of war powers, and fails to respond to
the challenges of the latter. Nevertheless, Tam.grateful for the opportunity
to reply. because it allows me to more fully' explain why the constitutional
text and structure creates a less legalistic, more flexible, war powers
system. Prominent defenses of a pro-Executive approach to war powers
generally emphasize thePresidents functional superiority to Congress in
foreign affairs and war.? Others, such as Professor Henry Monaghan, have
emphasized practice, in which Presidents often have initiated military
hostilities without a declaration of war." Pro-Executive scholarship,
however, has not yet offered a detailed textual and structural examination
of war powers. Here, I will provide a comprehensive textual and structural
defense of a flexible approach to war powers that provides Presidents with
the authority to initiate hostilities.
It is important to understand what is at stake. Like others in the pro-
Congress camp, Ramsey believes that many of the wars of the last half-
century have violated the Constitution. Thus, President Truman's use of
force in the Korean War, President Johnson and Nixon's expansion of the
Vietnam War.? and our interventions in places like Grenada. Panama.
Bosnia, and Kosovo, were all illegal because they were not accompanied
by a declaration of war or its functional equivalent. The implications of
Professor Ramsey's views. however, are not limited merely to finding
significant portions of governmental practice to be illegal. We are in the
midst of a terrible war against a determined terrorist enemy, one that
disregards the laws of war, operates at a global level. and wields the
resources and capability for violence of a nation-state. Professor Ramsey,
like others who find such significance in the Declare War Clause, would
require the President to receive the permission of Congress before he could
attack such terrorist groups and the nations that harbor or support them.'?
-: Judge Robert H. Bork has written: "[tjhe respective roles of Congress and the president
developed according to their structural capacities and limitations. Congress. consisting of
535 members assisted bv huge staffs. is obviouslvincapable of swift. decisive. and flexible
action in the employment of armed force." Robert H. Bork, Forewordto The Fettered
Presidency: Legal Constraints on the Executive Branch at x (L. Gordon Crovitz & Jeremy
A. Rabkin eds., 1989): see also Robert H. Bork. Erosion of the President's Power in Foreign
Affairs, (ill Wash. U LQ (i91lI990>.
"As Professor Monaghan has observed, a "practice so deeply embedded in our governmental
structure should be treated as decisive of the constitutional issue" Hem)' P. Monaghan,
Presidential War-making. 50 B.u. L. Rev. 19,11 (1970 special issue). See also J. Ten)'
Emerson, War Powers Legislation. 74 W Va. L Rev. 53,72 (1971).
9 Assuming It)!' the moment that the Tonkin Gulf Resolution was not itself sufficient to
authorize attacks on North Vietnam, Laos, or Cambodia.
10 To date, Congress has only authorized the use of force against terrorists that participated
in the attacks on the World Trade Center and the Pentagonon September 11,2001. See S.J.
Res. 23, Pub, L No, 107-40,115 Stat. 224 (20CH).
OCIO-H0312878
HI:lR AND CONS'TITUTIO:\::J.L TE\T
Moreover, as the nation now considers its policy toward despotic regimes
that are developing weapons of mass destruction, such as Iraq, Professor
Ramsey other pro-Congress advocates would require Congress to approve a
declaration of war or authorization, with its attendant public debate, before
the President could launch an attack.
This response will explain why a different vision of war powers, one
that hews more closely to the dictates of common sense and the realities of
the modern world, better comports with the constitutional text structure,
and history. Part I begins by addressing Professor Ramsey's claim that the
original understanding supports a pro-Congress understanding of war
powers. It will identify shortcomings in Ramsey's use of historical
materials, and it will explain why the original understanding of the
Constitution, properly understood, supports a more flexible approach to
war powers. Part II will discuss the textual foundations of this system, and
Part III will examine its structural imperatives,
I.
Rather than directly addressing the textual and structural arguments in
favor of a pro-executive approach to war powers, Professor Ramsey (like
most pro-Congress scholars) relies entirely on history. In an effort to
discern the original understanding of the Declare War Clause, Professor
Ramsey first argues that international legal scholars of the eighteenth
century had come to realize that declarations of war had almost no purpose.
Inthis regard, he attempts to outdo my 1996 article in the Califomia Law
Review, which had found few declarations of war in eighteenth century
British practice and therefore concluded that they were not considered
necessary for the initiation of hostilities." Second. he claims that the
irrelevance of declarations of war means that the Declare War Clause
actually must confer a a far broader power, because otherwise there was no
point in transferring the authority from the executive to Congress. He then
draws the true meaning of declaring war from rhetorical statements about
war by eighteenth-century thinkers such as Locke, and contemporaneous
British legal works. He concludes that these thinkers used the phrase
"declare war" to mean beginning a war either by issuing a declaration of
war ("by word") or by simply launching an attack ("by action").
This Part criticizes Professor Ramsey's treatment of the original
understanding. Professor Ramsey's response to pro-Executive scholars is
that the meaning of the Declare War Clause is so plain that 110 resort to
contextual evidence is necessary.> Ramsey's historical evidence must
11 Yon, Continuation ofPolitics at 214-17 (citedinnote I).
12 Ramsey, Textualism at _ (citedin note4l. Professor Ramsey's effort tounearththe
eighteenth centurymeaningof declaring war. which consumes most of his articles energies,
seeks toprovethat the text's meaningis indeedplain. Of course. if he wereright we would
OCIO-H0312879
TI'AR AXD CU\:'WITUTIO:\AL TEU 5
reach a high standard, if it is to overcome the textual and structural
arguments - to be more fully explored in Parts II and III - and practice in
favor of a flexible system characterized by presidential initiative and
leadership.Unfortunately, Professor Ramsey's history simply fails to meet
this standard. His approach to the eighteenth century materials
unfortunately bears the classic features of "law-office" history. He uses
sources incompletely, he does not address conflicting evidence, he does not
examine the historical context of the evidence he does use, and he neglects
the secondary historical works on the period. A fundamental lack of
historical context leads him to ignore the significant political and
constitutional changes that occurred during the colonial, revolutionary, and
critical periods in early American history. Professor Ramsey makes no
effort to trace developments in American thinking about constitutionaL
foreign affairs, or the war power during the tumultuous years between the
Revolution and the Ratification. For Professor Ramsey, Sir Matthew
Hale's 1672 comments on declaring war are as (or even more) significant
as James Madison's more than a century later..
These types of basic errors in the use of history lead Professor Ramsey
to struggle mightily to show that everyone in the Anglo-American world of
the eighteenth century shared the same basic understanding of declaring
war. Real history simply does not bear this out. Professor Ramsey simply
exaggerates the agreement, such as it was, among scholars concerning
declarations of war, and he focuses on their rhetorical uses of "declaring
war" while ignoring the specific legal definition given to the phrase by the
same authors in the same works. Yct, Professor Ramsey" s most glaring
error is his inattention to the actual events of the constitutional history of
the Framing generation. He assumes that the Framers would have been
more familiar with the musings of a Hale or Rutherforth - both of whom, it
appears, were never seriously discussed in the public political literature of
the Framing'» -- than with the actual political events that led to the break
with Great Britain and the ratification of the Constitution. Further.
Professor Ramsey ignores clear examples in which the Framers directly
drew upon these events to predict the operation of the Constitution's
system of war powers. In discovering the original understanding of war
powers, it is more important to reveal how the Framers thought that
different constitutional provisions would work, rather than what
conuuentators said about declaring war,
not have to examinethe historyat all, and his relianceuponit demonstrates that his textual
arguments, suchas theyare, reallydo not resolve the question.
13 See DonaldS. Lutz, The Originsof AmericanConstitutionalism 141-45 (1988) (charts
listingthinkersmost citedin Americanpolitical literatureduringcritical and ratification
periods),
OCIO-H0312880
6 n:4R.4:VD CO:.Y,' :iTITUTlO:V.:J L TEU
A. The Standards ofHistory
Professor Ramsey paints his picture on a broad canvas. without full y
seeing the whole canvas. He seeks to show that international legal
authorities, beginning with Grotius, extending through Wolff. Burlamaqui,
and Vatt el. and presumably ending in the ratification, had developed the
idea that declaring war meant commencing war either by word or by deed.
A more careful examination of the sources . however. indicates that
Professor Ramsey has exaggerated the agreement among thes e observers,
and, worse yet. has ignored thinkers who were more import ant and well-
known to the Framers. In addition to his incomplete examination of the
primary materials, Professor Ramsey has made methodological errors that
undermine his conclusions. He has made no effort to examine the nature of
Anglo-American constitutional development during the eighteenth century,
nor has he sought to understand the war powers issue as part of the changes
in American political thought that led to the ratification of the Constitution.
Examination of this context demonstrates that Professor Ramsey' s story is
out of step with the history surrounding the Constitution's ratification.
Whil e the thoughts of various European and British legal scholars on
declaring war are interesting. they are not relevant unless incorporated into
the developments leading to the Constitution's creation. In other words, it
docs not matter much what Ruthcrforth thought of British war powers
practice. or what Bynkershoek believed the Netherlands constitution' s war
powers were, unless we have a good idea whether their work actually
influenced the Framing generation. Further, we cannot judge the import of
these works without underst anding the broader historical trends of the
revolut ionary and ratification periods. In order to properl y reconstruct the
original understanding of the war power, common sense - if not the pleas
of legal historians and legal scholars who care about history - tells liS that a
scholar must do a good job of using history.
Unfortunately, Professor Ramsey's account fails these standards .
First. he has not taken an appropriately broad approach to the primary
sources or the ratification period, but instead has focused on only a narrow
sliver - eighteenth century treatises on international law, to be exact.
Situating the ideas and concepts we argue about today in their historical
setting invariably helps us understand more about them. We will better
comprehend t he contours and nature of the Presidency. for exampl e, by
examining what intellectual trends and constitutional developments - the
early state experiments with a fragmented executive branch and the return
to a unitary executive - gave rise to it.l-I A more complete understanding
1 ~ Thi s does not mean. of course, that there is full agreement on the exact nature of the
executive power or of the Presidency. Compare Steven G. Calabresi & Saikrishna B.
Prakash. The President' s Power to Execute the Laws. 104 Yale LT. 54 1. 549-50 ( 1994)
(arguing that "the originalist text ual and hi storical arguments for the unitary Executive,
OCIO-H0312881
n:4R.·LVD TEU 7
of war powers , therefore, requires us to examine not just the international
legal thought concerning declarations of war (as Profess or Ramsey has
done) , but more importantly the domestic constitutional understandings. as
reflected both in intellectual trends and in the actual events preceding the
ratification. In contrast. Professor Ramsey's approach produces a myopic
effect, in which small differences are mistakenly magnified into
distinctions of constitutional significance.
Thus, Professor Ramsey's account is lacking, as a matter of primary
materials, because he does not int egrate his evidence from eighteenth
century international legal thought into the other, most relevant primary
materials involving war and the separation of power. He never produces
any statements by actual Framers, such as Alexander Hamilton, James
Madison, or James Wilson, that rely specifically on folks like Rutherforth,
Hale. or even Vattcl on the question of war powers. Several of the
authorities relied upon by Professor Ramsey for his thesis were barel y
discussed or referred to in the American political literature of the 1780' s,
while others - such as Mont esquieu - who were the Framers' favori tes go
virt ually unexamined .v Professor Ramsey never explains how the power
to declare war fit into the theori es of the separation of powers advanced by
a Hamilton, Madison, or Wilson. From the way Professor Ramsey tells it.
the Declare War Clause was its own independent book. with a compl et e
beginning. middle , and end. rather than a theme running through the larger
story ofthe Framing.
Second, Professor Rams ey has ignored a basic rule for using history:
considering the main secondary works on the Framing periods. Over the
last 50 years . historians have produced a rich trove of works on the
intellectual origins of the Revolut ion and the Constitution, including
Bernard Bailyns Ideological Origins of the American Revolution. Gordon
taken together. firmly establish the theory" ofthe unitary Executive): Martin S. Flahertv,
The Most Dangerous Branch. 105 Yale L T. 1725. 1
7
50-51 ( 1996 ).
' " Rutherforth, Hale. and Lee. whomProfessor Ramsey credits withthe idea that a
declaration of war was unnecessary, do not even make a list of thinkers cited by the
Framers. To make the list a writer would hove hod to have been cited in at least OJ/(' //(1[( fil
one pe rc ent of the political writingof the day. Lutz, Origins of American Constitutionalism
at 142-45 (cited in note 13). While Professor Ramseycriticizes the Grotian view of
declarations of war because it did not min or reality and was rejected by those that followed.
he remained the most cited thinker 0 11 international law. Id. at 142. J45. Til contrast. his
reliance on Burlemaqui, Wolff, and Bynkershoek is misplaced. for none of them appear to
have been discussed in at least one half of one percent of the Framing-era political literature.
Montesquieu and Blackstone. by contrast. upon whom I placed the greatest reliance in mv
earlier work on the impact on eighteenth century legal thought on the framers. are the two
most-cited secular thinkers of the time. !d. at I·G,
While. as we all know'. citation rates do not correspond exactly to inl1uence or the
importance of a work, there does appear to be a relationship between citationrates and
impact. The three European thinkers who were the most influential on the thinking of the
Framers - Montesquieu, Locke. and Blackstone - also were the most frequentlv cited.
OCIO-H0312882
8 WAR.--LVD TEU
Wood's The Creation of the American Republic. 1776-1787. and Forrest
McDonald's Novus Ordo Seclorum: The Intellectual Origins 01' the
Constitution to Jack Rakoves recent Original MeaningsP Professor
Ramsey has made no serious effort to distill the lessons of these secondary
works, nor to place the developments that he has focused on - the meaning
of declaring war in eighteenth century international legal theory - within
the broader intellectuaL political, and constitutional developments
identified by these historians.'? As developed primarily by Professor
Wood, American constitutional thought evolved during this period from a
revolutionary belief that Americans were defending their rights under the
British constitution, to failed state experiments in legislative supremacy
during the period of initial independence, to the Thermidorean reaction that
restored power to the unitary executive." I will describe how the
executive's war powers at first suffered, then survived these changes in
American constitutional design - in other words, 111Y reading of the
President's war powers is consistent with the larger story of constitutional
evolution. Because he ignores the broader historical context, Professor
Ramsey cannot explain why the Framers would swim against the currents
of history by transferring the power to initiate hostilities to the legislature,.
B. The History ofConstitutional Development
Putting these methodological errors to one side, Professor Ramsey's
,6 BernardBailyn, The Ideological Origins of the AmericanRevolution GordonS.
Wood. The Creationof the AmericanRepublic 1776-1787 (1969): Forrest Mcfronald,
Nevus Ordo Seclorum: The IntellectualOrigins of the Constitution(1985): JackN. Rakove,
Original Meanings 116 (1996).
,- Seriousconstitutional historianshave leveled this complaintagainst similar original
understanding scholarship. See, e.g., WilliamM. Treanor, Fame. the Founding,and the
Power to DeclareWar. 82 Cornell L.IZ695 Martin S. Flaherty. History"Lite" in
ModernAmericanConstitutionalism, 95 Colum. L. Rev. 523 (1995). Flahertyhas observed
that some original understanding work"fall]s] beloweventhe standardsof undergraduate
historywriting," id. at 526, because of improper attentionto facts, sources. and context. and
that one signof poor scholarshipis a lack of "thoroughreading, or at least citation. of both
primaryand secondarysourcematerial genemllyrecognizedby historiansas central to a
givenquestion," id. at 553. While I have mydisagreementson the historical merits with
bothTreanor, see Yoo, Clio at 1209-15 (cited in 110te I), and Flaherty, see JohnC. Yoo,
Treatiesand PublicLawmaking: ATextual and Structural DefenseofNon-Self-Execution.
99 Colum. L. Rev. 2218.2221-33 (1999), we agree on the basic standards that shouldguide
the use of historyin constitutional interpretation,
IS Wood. Creation at 446-53 (cited in note see also Marc Kruman. BetweenAuthority
& Liberty: State ConstitutionMakingin Revolutionary' America 109-30 (1997): Forrest
McDonald. The AmericanPresidency: An Intellectual Hist01
Y
· (1995): Willi Paul Adams,
The First AmericanConstitutions: RepublicanIdeologyand the Makingof the State
Constitutionin the Revolutionary Era 271-75(Rita & Robert Kimber trans., Charles
C. ThachJr., The Creationof the Presidency, 1775-1789: A Study in Constitutional History
34-35 (1922).
OCIO-H0312883
JORs\D.TOOOOI 1 oo 1JC RE<;PO\JSF..;, DOC
9
history comes up short by failing to place his interpretation of eighteenth
century legal authorities in the context of early American constitutional
thought. Professor Ramsey has written his article as if an array of
international legal scholars. ranging from the well-known to the obscure,
had directly' beamed their thinking into the minds of the Framers, who so
utterly, yet unconsciously, shared the same ideas that they blindly obeyed
and never explained publicly what they were doing. A better approach
would examine not just a slice of the intellectual debates during this time,
but, more importantly, the Framers' actual experience with war matters,
with constitutionalism. and with the ratification. I have examined these
developments and their import for the war powers debate elsewhere.19
Here, I will only point out some significant historical lessons that
demonstrate the serious flaws in Professor Ramsey's historical account.
I have already briefly alluded to the general story of constitutional
development during the Framing period, as outlined by Professor Gordon
Wood. During the eighteenth century, the British constitutional system
centralized executive power in the Crown. Defending what they initially
viewed as their constitutional rights as British citizens, the American
colonists believed that the Crown's usurpation of power had produced the
oppressive measures that led to the Revolution. Once independent, the
Founding generation experimented with direct democracy, and wrote their
first state constitutions to expand the powers of their legislatures. These
efforts produced chaos, leading some states to adopt admired constitutions
that returned power to the executive branch. Following these changes, the
Framers designed a new Constitution that restored powers to a Presidency
that once against enjoyed unity and independence. 20 In evaluating
Professor Wood's thesis, recent historical work has only emphasized that
the idea of a separation of powers and a stronger executive took hold in the
American political consciousness more deeply and earlier than thought. 21
Several important historical points demonstrate that war powers
generally tracked this basic account of American constitutional
development. First, the British constitution clearly granted the Crown the
power to initiate war. As the undisputed Commander-in-Chief of all
military forces, the King could make war at his discretion. In fact, the
constitutional struggles of the late seventeenth and early eighteenth
centuries did not question the King's power over war, but the Parliament's
control over the Crown's military activities through its power of the
purse
2 2
Bv the time of the Framing. the British political system had
19 Yoo, Continuation ofPolitics at 196-294 (cited in note I).
00 See generally Wood. Creation at 138, 393-429,434 (cited in note 16).
21 See Adams, First American Constitutions at 256-75 (cited in note Kruman,
Between Authority & Liberty at 109-30 (cited in note Mclfonald. Novus Ordo Seclorum
at 80-86 (cited in note 16).
Yoo. Continuation cfPolitics at 209-14 (cited in note I).
OCIO-H0312884
10 WARAND CONSTITUTlON4L TEU
reached a settlement in which Parliament's control over money gave it a
functional veto over whether the nation would wage war.
2
:
3
Not only was
declaring war never mentioned as a significant constitutional power for
separation of powers purposes, but declarations of war were rarely iSS1Jed
before or at the start of hostilities. No British citizen - which is what after
all. the Framers had been - would have associated the power to declare war
as a check on executive military action, because Parliament already
enjoyed such authority through the funding power. As we will see during
the ratifying conventions, the Framers would have understood the
allocation of the war power between President and Congress against the
historical baseline established by the struggle between Crown and
Parliament.
Second, the pre-ratification state constitutions and charters, which
Professor Ramsey fails to address. either assumed that the executive
possessed the power to begin hostilities, or vested such authority explicitly
in the governor. In the area of foreign affairs, the first state constitutions
generally reduced the executive not by transferring powers directly to the
legislature, but by fragmenting the unity and independence of the executive
through advisory councils, multimember executives, or limited tenns.s!
Nonetheless, two constitutions that were widely admired by the framers.
New York and Massachusetts, bucked this trend and retained in the
executive the powers of commander-in-chief These constitutions assumed
that the executive continued to possess the power to make war, and, unlike
South Carolina's constitution, created no explicit requirement of consent by
the legislature for warmaking.ss Massachusetts' 1780 constitution vested
in the executive the full authority "to lead and conduct [the military]. and
with them to encounter, expulse, repel, resist and pursue by force of alms..
as well be sea as by land, within and without the limits of this state" its
enemies.> 27 These constitutions did not rely on the notion that declaring
war was equivalent to commencing hostilities. and, indeed, none of them
vested the legislature with the power to declare war in order to check the
23 Id. Parliament's creationand control over the financial system becausethe "sinews of
power" that made possible Great Britain's rise to power during the eighteenthcentury. See
generally John Brewer. The Sinews of Power: War. Moneyand theEnglish State. 1688-
1783(1989).
2 ~ Yoo, Continuation ofPolitics at 222-23(cited in note I).
~ , 3 Id, at 228-34. See S.c. Const, <lit. XXVI (1776J, reprinted in6111e Federal and State
Constitutions. Colonial Charters. and Other OrganicLaws 3247(Frances N. Thorpe ed.•
19(9) (executive's power to wage war requires legislativeconsent). The importanceof the
South Carolina Constitutionwill be addressedin Part Il.B, iI1/;'O. text accompanying notes
261vfa:;s. Const. art. VII (1780). reprinted in 3 id, at 1901. As GordonWood has observed,
the Massachusetts constitution"came to stand for the reconsideredideal of a "perfect
constitution." in the minds of the Framers. Wood, Creation at 434 (cited in note 16).
OCIO-H0312885
n:CIR .·LVD COXSTITUTIOXAL TEU 11
executive. Rather, the legislature continued to possess and exercise the
same check enjoyed by Parliament: the power over funding.
Third, the leading constitutional thinkers of the day believed that the
executive ought to have the power to initiate and conduct hostilities.
Perhaps the three writers whom the Framers consulted most often on the
separation of powers were Locke, Montesquieu, and Blackstone.28 All
three indisputably believed that the executive should exercise full powers
over the beginning and operation of war, subject to the legislature's power
over funding.s? Blackstone in particular described declarations of war as
only serving to notify the citizens of both nations that the sovereign had
legally sanctioned the hostilities. rather than as a necessary constitutional
step to be taken before hostilities could break out. These three writers
were, far and away. the most respected authorities on the separation of
powers among the Framers. One historian, for example, calculates that
Montesquieu, Blackstone, and Locke, roughly in that order, were the most
cited non-religious thinkers in the political writing of the Framing period.v'
To be sure, Professor Ramsey completely relies upon Locke and
Blackstone for his notion that declaring war meant a beginning of
hostilities either by "word or action." He claims that Locke believed that
declaring war meant commencing hostilities because Locke had observed
that a state of war could be created with individual men "declaring war by
Word or Action" against each other."31 Professor Ramsey's great reliance
on this quote - indeed, it is the crux of his contribution to the war powers
literature - unfortunately demonstrates the faults of his historical method.3
2
Here. as Professor Ramsey must admit Locke is generally discussing the
difference between the state of war and the state of nature. and why a
man's intention to commit murder places him in the former. It is obvious
2$ In 1770s American political writing. Montesquieu and Locke accounted for more than 75
percent of all references to Enlightenment thinkers. Lutz, Origins ofAmerican
Constitutionalism at 142 (cited in note 13). As Lutz puts it "Montesquieu is almost without
peer during the founding era" in terms of influence. Id. at 144. After Moutesquieu, Lutz
reports. Blackstone was the second most commonly cited secular thinker. and was cited two
and a halftimes as often as Locke. ld. The importance of their work on the separation of
powers is helpfully discussed in W.B. GWyl 1, The Meaning of the Separation of Powers
( I 9 6 5 ) ~ M.le. Vile- Constitutionalism and the Separation of Powers 58-130 (2d ed. 1998).
29 See John Locke, The Second Treatise of Government §§143-47 (J.W. Gough ed., 3d ed.
19(6): Montesquieu, The Spirit of the Laws bk. Xl. ch, 6. para. 1-2, 6()-o2 (David W.
Carrithersed.• 1977t I William Blackstone. Commentaries on the Laws of England *244-
54.
:3° See note 28. By contrast. Hale and Rutherforth, the two writers relied upon most heavily
by Professor Ramsey fix his idea that war could be declared by mere action, appear to have
received no notice at all during the Framing. See Lutz. Origins ofAmerican
Constitutionalism 142-144 (cited in note 13).
:)1 Ramsey, Textualism at _ (cited in note 4) (quoting Locke. Second Treatise at § 16 (cited
in note 29».
:3° Locke. Second Treatise at § 16 (cited in note 29).
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that Locke is not referring to governmental structure or constitutional
design, or even questions concerning relations between nations.
Indeed, it is apparent that Professor Ramsey's quotation of Locke is
more than a little wishful. Locke does not actually use the phrase
"declaring war." The passage from Locke says: 'The state of war is a state
of enmity and destruction: and therefore declaring by word or action, not a
passionate and hasty. but a sedate settled design upon another man's life,
puts him in a state of war with him against whom he has declared such an
intention. and so has exposed his life to the other's power to be taken away
by him, or anyone that joins with him in his defence, and espouses his
quarrel."33 It seems clear here that Locke has not used the phrase
"declaring war." but has instead used the phrase "declaring . . . a sedate
settled design." All Locke is saying here is that one man enters a state of
war with another man - not a nation-state - if the former tries to kill the
latter. Since Professor Ramsey lays the foundation of his argument,
however, on the precise meaning of "declaring war" as used by Locke, this
misquotation of a Second Treatise damages his argument beyond repair. In
fact. as far as I can tell, Locke never used the phrase "declaring war."
Putting this problem to one side, Professor Ramsey further mistakes
Locke's rhetorical "declaring war" for a phrase with a definite legal and
constitutional meaning. Other passages from a Second Treatise work out in
detail the powers of the executive branch in foreign affairs. Those sections
describe a "federative power." located in the executive branch, which
contains "the power of war and peace, leagues and alliances. and all the
transactions with all persons and communities without the
commonwealth."3-l Locke makes clear that the federative power is "always
almost united" with the domestic executive power. and that separating the
two would lead to "disorder and ruin" because matters of war and peace did
not lend themselves to "direct[ion] by antecedent. standing. positive
laws."35 It defies explanation why we should elevate Locke's rhetorical
use of "declaring war" in discussing the state of nature, above his specific
discussion of war, foreign affairs, and the separation of powers.
Professor Ramsey follows this up with yet another oddinterpretation of
a primary source. this time Blackstone. He argues that Blackstone agreed
with the idea that declaring war meant commencing war. because of a
passage from the Commentaries in which Blackstone says that a pirate, "by
declaring war against all mankind. all mankind must declare war against
him."16 As with his use of Locke. Professor Ramsey has once again sought
to infer a precise legal meaning of "declaring war" from what is clearly a
:3:3Id. (emphasis added).
leL at § 146.
:33Id. at § 147-48.
:36 Ramsey. Textuolism at 45 (cited in note 4) (quoting Blackstone. Connnentaries at *_i.
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rhetorical use of the phrase. And again, Professor Ramsey compounds his
historical errors by ignoring other sections in the same source where the
author specifically discusses war, foreign affairs, and the separation of
powers Like Locke, Blackstone Clearly believed that the pmyer to
commence hostilities lay with the executive: "the king has also the sole
prerogative of making war and peace," and the king is the "generalissimo.
or the first in militarycommand, within the kingdom. "37 Blackstone
further argued that a declaration of war served as more of a notification that
the sovereign authority has decided on war, and that a state of war existed
between the citizens of the warring nations.s'' Nowhere does Blackstone
conclude, in the context of the separation of powers. that "declaring war"
meant beginning war by "word or action. "39
A third example completes the trinity of Professor Ramsey's errors.
While he struggles to show that international law writers such as Vattcl and
Bynkershoek did not use "declaring war" inconsistently with his view,
Professor Ramsey pays no heed to the most influential of all writers on the
3'" Blackstone, Commentaries at *249, *254 (cited in note 29).
38 Id. at *249-50.
39 Unfortunately, Professor Ramsey's decision to relegate to a mere footnote Blackstone's
discussion of a declaration of war .is an unfortunate example of a less than rigorous use of
historical materials. See Ramsey, Textualism at 38 fh.161 (cited in note 4). With Locke and
Montesquieu, Blackstone was one of the three most influential secular thinkers to the
Framers. Blackstone in particular had great appeal to the Framers as the authoritative
treatise on many areas of law. Wood, Creation at 10 (cited in note 16). His discourses on
the separation of powers and the war power were quite familiar to the Framers; inde",d,
Alexander Hamilton's definition of the King's war powers seems to derive directly from
Blackstone. See The Federalist No. 69, at 465 (Jacob E. Cooke eel. 19(1) (Alexander
Hamilton). Blackstone's thinking about declarations of war, we mav assume. held far more
significance to the Framers than the works of men. such as Rutherforth and Hale. who were
never cited or discussed in the political literature and debates of the ratification. Blackstone
had this to say about declarations of war:
why according to the law of nations a denunciation of war ought always to precede
the actual commencement of hostilities, is not so much that the enemy may be put upon
his guard. (which is matter rather of magnanimity than right) but that it mav be certainly
clear that the war is not undertaken by private persons, but by the will of the whole
community. whose right of willing is in this case transferred to the supreme magistrate
by the fundamental laws of society. So that, in order to make a war completely effectual,
it is necessary with us in England that it be publicly declared and duly proclaimed by the
king's authority: and, then, all parts of both the contending nations. from the highest to
the lowest, are bound bv it.
Blackstone at *249-50 (cited in note 29) Somehow, Professor Ramsey reads this language
- which is clearly borrowed from Grotius - as "highly ambiguous." Ramsey, slIpra. To the
contrary, it seems that Blackstone believed that a declaration served the purpose of
notification that hostile actions were legal because authorized bv the sovereign. In any
event. Blackstone certainly does not discuss a declaration as iii any way necessary ft)r
domestic constitutional purposes.
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separation of powers, Montesquieu.t? In his Spirit ofLaws, Montesquieu
located the foreign affairs power and, specifically. the war power in the
executive. "By the [executive power. the king] makes peace or war, sends
or receives embassies, establishes the public security, and provides against
invasions.Tu Montesquieu believed that the British legislature possessed
all the control it needed over the executive's war powers, because of its
authority to terminate military funding and to even disband annies.P
Montesquieu clearly uses "making war" to mean the commencement of
hostilities. Montesquieu never even mentions "declaring war." Professor
Ramsey's reliance on rhetoric by Locke and Blackstone not only
misreads those writers, but it also ignores their significant agreement with
Montesquieu. Properly read, all three authorities agreed that a) the
executive possessed the power to start hostilities, which they described as
the power to "make" (not declare) war, and b) the legislature enjoyed an
important check on executive warmaking through its power over
appropriations. \Ve should take such agreement seriously in interpreting
the Constitution, as Montesquieu, Locke, and Blackstone were the three
most int1uential authorities on the separation of powers and constitutional
design of their time. Professor Ramsey's failure to even consider
Montesquieu demonstrates the incompleteness of his historical analysis
and. unfortunately, a distressing focus on a few sprinkles of rhetorical
language at the expense of the core historical and constitutional
developments of the period.
These three historical developments - the pattern of British practice,
the experience under the state constitutions, and the work of constitutional
theorists - set the stage for ratification, All three sources indicate that the
Framers would have understood the President's powers as commander-in-
chief and chief executive as vesting him with the authority to initiate and
conduct hostilities. They demonstrate that the power to declare war would
not have been understood by the Framers as a significant restriction on the
President's powers in war. Instead, the relevant history points to the
control over money as the legislature's most effective check on the
executive branch. It is this historical backdrop, rather than Professor
Ramsey's effort to draw distinctions among eighteenth century legal
writers, that provides the all-important context for the ratification of the
Constitution.
4() Montesquieueasily outpaced all other writers in his int1uence on the Framers' thinking
about the separation of powers. Lutz. Origins ofAmerican Constitutionalism at 144(cited
in note 13). The writers of The Federalist Papers, for example. sometimesquoted long
passages fromMontesquieu's Spirit ofthe Laws. See, e.g., The FederalistNo.9 (Jacob E.
Cooke ed. 1961) (Alexander Hamilton).
41 Montesquieu, Spirit ofLaws at bk. AT ch. 6, para. 2 (cited in note 29).
4 ~ Id. at para. 60-61.
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C. Understanding the Original Understanding
Professor Ramsey's errant voyages in the historical record are
unmoored from any normative theory of interpretation. He docs not
identify what it is about the original understanding that is important, what
moments in the revolutionary or ratification periods are critical, nor what
types of evidence are more probative than others. A more nuanced view of
originalism recognizes that it is the understandings of the state ratifying
conventions that are of primary importance, because it was their approval
that brought the Constitution into force as a legal and political matter.f'
Turning to the intellectual history of the period is important insofar as it
helps us recreate what the ratifiers ofthe Constitution thought the text they
ratified means. Although certain ideas. definitions. and concepts might
have been present in the intellectual world of the eighteenth century, they
arc not relevant to the original understanding unless they were known to,
and understood by, the Framers who ratified the Constitution.
One of Professor Ramsey's difficulties, however, is that he cannot
draw direct connections between his evidence - the rhetorical usage of the
phrase "declaring war" in eighteenth century political and legal writing -
with the actual events of the ratification. Nevertheless, he elaims that the
Framers transformed a certain understanding of a nation's power to declare
war under international law - one that he admits is not all that clear and
distinct from the one I have identified in earlier work - into a separation of
powers tool by which the Congress could control the war powers of the
President. Professor Ramsey does not take a stab at the difficult project of
explaining how a power relevant tor purposes of international law suddenly
metamorphosed into a critical balance wheel in the separation of powers.
Nor does Professor Ramsey examine the development of the separation of
power and of the foreign affairs power during the ratification, which would
sit at the core of any truly originalist account ofthe war power.
As a result Professor Ramsey' s account of the ratification is
disappointing. It displays no awareness for the course of ratification as
different state conventions held their proceedings. it seeks no
understanding of the central disputes that arose between Federalists and
Anti-Federalists, and it shows no sense of the political forces at work in the
states or in the nation as a whole. As an originalist. Professor Ramsey must
realize that the ratification debates are the most relevant and probative
sources for determining the Constitution's meaning.H Yet, in only a
4:, See LeonardLevv, OriginalIntent and the Framers' Constitution 1-29(1988\ JackN.
Rakove, OriginalMeanings: Politics andIdeas in the Makingof the Constitution 8-9(1996):
CharlesA. Lofgren,The Original Understanding of OriginalIntent? 5 Const. Commentarv
77,111-1311988).
44 As JamesMadisonarguedduringthe 1794JayTreatydebates, whenthe draft
Constitution "carne from[thePhiladelphia convention] it was nothing more thanthe draft of
a plan, nothingbut a dead letter. until life and validity were breathed intoit by the voiceof
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cursory review. Professor Ramsey examines the few mentions of
declarations of war during the ratification to show the Framers' use of the
phrase does not clearly foreclose his thesis." He cannot show that any of
these examples demonstrate that the framers understood "declaring war" to
specifically mean commencing or engaging in hostilities. as no Framer
apparently ever described the power in that fashion. All Professor Ramsey
is left with, then. are a few Federalist claims that the new President would
not be a despot, because the Constitution transferred to Congress several of
the King's powers, such as that of declaring war and of raising arrnies.s? In
none of these exchanges did the Federalists explain what declaring war
meant: they only included it in a general enumeration of powers that the
executive had list.
By contrast, there was an important moment in the ratifying
convention when the precise issue - whether Congress could prevent a
President from unilateral warmaking - was joined. It was not raised in an
obscure, garbled, last-minute debate (as was the drafting of the Declare
War Clause during the Philadelphia Convention), or an unread Anti-
Federalist paper. Rather. the question was directly raised and answered in
the ratifying convention in the most important state in the Union. Virginia
was the critical state for ratification. Geographically, Virginia linked N0l1h
and South. and its political importance was such that leading Federalists
believed that the Constitution would never survive without her approval.t''
Virginia also recommends itself because, from the records that survive, it
appears that the state experienced the fullest. and most contested, debate
over the Constitution. Anti-Federalists brought forth their greatest leaders,
the people. speaking through the several State Conventions." 5 Annals of Congress 776.
On this point, Madison was repeating the view he had expressed as Publius during the
ratification struggle itself See The Federalist No. 40, repnnted in 15 Documentary History
of the Ratification of the Constitution 407 (John P. Kaminski & Gaspare J. Saladino eds,
1986). James Wilson made the same argument about the primacy of the ratifying
conventions over the constitutional convention as well. 2 1\J. 483 (statement in Pennsylvania
ratifying convention).
Ramsey does not appear to place any great weight in the Philadelphia Convention's decision
to change Congress's power from to "make war' to "declare war." 1 The Records of the
Federal Convention of 1787, at 318-19 (Max F3lT3nded., 1911'l. I agree with Ramsey here,
not only because Madison's brief (and secret'>notes ofthis decision seem garbled. but also
because the federal convention itself exercised no power other than that of making
recommendations. As the Framers themselves understood, it was the ratifying conventions
themselves that gave the Constitution its political legitimacy, not the proceedings of the
Philadelphia convention. See, e.g., Yoo, Glohalism at 2025-26 til. 328 (cited in note l.
46 Ramsey, Textualism at 51-54 (cited in note 4). -.
4 ~ See The Federalist No. 69 at 465 (cited in note 39): 4 Jonathan Elliot, The Debates in the
Several State Conventions on the Adoption ofthe Federal Constitution 107-08 (1836)
(speech of James Iredell before the North Carolina ratifying convention).
48 See 2 Bernard Bailyn, Debate on the Constitution 1067 (1993): Forrest McDonald, We
the People: TIle Economic Origins of the Constitution 255-56 (1958).
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n:C.lR .·LVD COXSTITUTIOAAL TEU 17
such as Patrick Henry, George Mason, and Edmund Randolph, to do battle
with Federalist leaders such as George Washington. James Madison. and
John Marshall. 49 Virginia was also the toughest hurdle that the
Constitution surmounted on the way to ratification; an Anti-Federalist
motion to send the Constitution back for amendment lost by only 88 to
80.:)0 Virginia. therefore, should be of decisive importance in interpreting
the Constitution because it was a critical "veto-gate" through which the
Constitution had to pass before becoming law.5l
In this most critical of ratification conventions, Anti-Federalists waged
a direct attack on the Constitution's allocation of war powers. Anti-
Federalists claimed that the states would have no means to control the
national government' s ability to make war, and they further argued that the
Constitution would not prevent the President from becoming a military
dcspot.s- Patrick Henry argued before the Virginia convention:
If your American chief be a man of ambition and abilities. how
easv is it for him to render himself absolute! The annv is in his
hands, and if he be a man of address, it will be attached to him,
and it will be the subject of long meditation with him to seize the
first auspicious moment to accomplish his design .... Ifwe make
a king, we may prescribe the rules by which he shall rule his
people, and interpose such checks as shall prevent him from
infringing them; but the President. in the field. at the head of his
army, can prescribe the terms on which he shall reign master, so
far that it will puzzle any American ever to get his neck from
under the galling yoke. .. If ever he violates the laws. . he
[may] come at the head of his army, to carry every thing before
him .... [W]here is the existing force to punish him? Can he not,
at the head of his army, beat down every opposition? A way with
your President! [W]e shall have a king: the army will salute him
monarch: your militia will leave you and assist in making him
king. and fight against you: and what have you to oppose this
force? What will then become of you and your rights? Will not
absolute despotism ensue?:53
To eliminate the specter of executive tyranny, Antifederalists wanted to
~ 9 See LanceBanning, Virginia: Sectionalismandthe General Good. in Ratifyingthe
Constitution262 (Michael A. Gillespie & Michael Lienesch eds. 1989) (describing
circumstancesof Virginia ratifyingconvention).
50 ](l DocumentaryHistorv at 1538(cited in note 45) (vote of June 25. 1788).
51 See generallyWilliamN. Eskridge. Jr. &Philip N. Frickey. Cases and Materials011
Legislation: Statutes and the Creation ofPublic Policy66-67 (3d ed 200I) (definingand
discussingvetogates)
,,2 Under the Articles of Confederation. the states controlledthe sourcesof supplyand
money for thenational government. whichallowed the states to prevent anyactions with
which they disagreed. See generallyThe Federalist Nos. 11-13.at 65-83 (Alexander
Hamilton).
":39DocumentaryHistory at 964 (listed in note 45) (speech of June 5.1788).
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18 WAR TEU
restore the funding power to the states, ban standing armies in peacetime,
and to return control over the militias to the states.s- In other words, it was
not enough that the purse and sword would be in separate hands - Henry
wanted the purse and sword to be in different governments.
In response, Federalists never described Congress's power TO declare
war as a check on The President, even though it was very much in their
interest to do so. Rather. they relied upon the traditional legislative check
on executive warrnaking established by Congress's control over funding.
This created a double security against tyranny. First. the the federal
govemment's power to make war itself would be divided, and, second,
Congress would have a powerful means of controlling presidential military
adventurism. Replied Federalist George Nicholas:
Under the new government. no appropriation of money, to the usc
of raising or supporting an army. shall be for a longer term than
two years. The President is to conunand. But the regulation of the
army and navy is given to Congress. Our representatives will be a
powerful check here. The influence of the commons. in England.
in this case. is very predominant.X
In other words. Nicholas argued, the warmaking relationship between
President and Congress would operate just as did the one between Crown
and Parliament. It is significant that Anti-Federalists did not disagree about
the workings of the British system. They appear only to have believed that
the conspiring branches of the federal government would combine these
powers to oppress the states.
Madison, as the leader of the drive for ratification in Virginia,
followed with a powerful rejection of the Anti-Federalist critique. Madison
criticized Henry's view that the purse and sword had to be held by different
governments. and he explicitly analogized to the British experience:
What is the meaning of this maxim? Does it mean that the sword
and purse ought not to be trusted in the hands of the same
government') This cannot be the meaning: for there never was.
and T can say there never wi II he, an efficient government. in
which both are not vested The only rational meaning is. that the
sword and purse are not to he given to the same member. Apply it
to the British government which has been mentioned. The sword
is in the hands of the British king: the purse in the hands of the
Parliament It is so in America, as far as any analogy can exist.5
6
Like Nicholas. Madison never invoked Congress's power to declare war as
a legislative check on the executive. Rather. in order to deflect accusations
that the executive branch would remain uncontrolled. he relied directly
upon Congress's control over funding. He even predicted that Congress's
54 10 id. at (proposed amendments reponed out June 27. 1788).
55 10itt. at 1281 (speech of June 14.1788).
56 Id. at 1282 (speech ofJune 14, 1788).
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powers over warmaking would operate in a manner identical to those of
Parliament.
Madison further emphasized that the funding power, in addition to
Congress's other powers over the military, would prove to be more than
enough of a check on the President.
The purse is in the hands of the representatives of the people.
They have the appropriation of all moneys. They have the
direction and regulation of land and naval forces. They are to
provide for calling forth the militia: and the President is to have
the command, and, in conjunction with the Senate, to appoint the
officers.v
It is important to notice what Madison did not argue. Madison did not
assert that the Declare War Clause would check presidential power . Nor
did he claim that the Constitution imposed specific and formal rules for the
war-making process, as it did for the legislative process. Instead, Madison
argued that the branches would develop their war policies through the
conflict or cooperation of their plenary constitutional powers. He
emphasized Congress's power over funding and over the military, not the
power to declare war.
Together, Federalists and Anti-Federalists in Virginia engaged in a
debate over the war power, and the understanding that emerged from that
crucible is one that followed tradit ional Anglo-American practice. As
Commander-in-Chief, the President would have the initiative in matters of
war, but Congress could use its appropriations power to enforce its own
policies. Nowhere in this critical debate, which represents the most direct
exchange of views over war powers between Federalists and Anti-
Federalists, does Professor Ramsey's power to declare war make an
appearance. As Virginia was the critical state in the process of ratification,
tills evidence directly reflects the original understanding of war powers
held by those who ratified the Constitution. These exchanges serve as the
most authoritative historical source for interpreting the war power, because
they record the public explanation of the Constitution's meaning that won
its ratification.
Professor Ramsey never explains, nor even takes note of. the Virginia
ratifying convention. TIllS shows the core fault in his methodology. To be
sure, he has identified some examples in which some eighteenth century
writers appeared to use the phrase "declare war" to mean commence war.
Although this meaning was purdy rhetorical. Professor Ramsey then
attempts to prove that the Framers' use of the phrase was not inconsistent
with his.interpretation. While this might make for a good lawyers brief, it
does not present a convincing or even coherent historical account of the
development of the war power. In fact. Professor Ramsey's approach
5:" Id.
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20
ignores the richness of the historical context and the importance of the
political decisions and explanations made by the Framers themselves. A
more comprehensive theory, which I have undertaken earlier and only
summarize here, shows that the Framers did not believe they had
established a strict, legal process for wannaking. Instead, they expected
that the branches would use their plenary constitutional pov,'ers to either
cooperate or contest for primacy in war policy.
ll. Fighting the Constitutional Text
According to Professor Ramsey, I am a "textualist originalist.D'' I
wasn't aware that this new school had opened, or that I had enrolled.
Nonetheless, I agree with its central tenet: we should interpret the
Constitution based on the meaning of its words, as its ratifiers would have
understood them. He says that this methodology "gives much more
primacy to the actual words of the Constitution, and accords much less
importance to extrapolation from statements (particularly after-the-fact
statements) of the generalized outlook of individual Framers. 59
Unfortunately, I am afraid that Professor Ramsey has failed to satisfy the
very standards he has set for himself. He has forgotten that primary
attention must be devoted to the Constitution's actual text and structure,
and instead he has sought to "extrapolate" a unified. shared understanding
of the Framers from a few quotations. Yet at the same time, his historical
account conceals a simple textual argument long made by pro-Congress
scholars. He believes that the power to declare war must mean something
more than what its text suggests, and that something must be the sole
authority to commence hostilities.
In this and the following part, I will explain why IDe text and structure
of the Constitution cannot support this reading. First I should make clear
the core of Professor Ramsey's textual argument and its implications. As I
understand it, Ramsey believes that the Constitution sets out a single,
simple process for waging war. As others have argued before, Professor
Ramsey believes that the Framers understood the Declare War Clause as
giving Congress the sole power to decide on whether to commence military
hostilities against other nations. Under international and domestic law at
the time, therefore, "declare war" meant "begin war" or "commence war"
or "authorize war." Only once Congress had issued this authorization
could the President trigger his Commander-in-Chief authority and fight the
war to its conclusion.
This position simply finds little support in the constitutional text and
structure. Professor Ramsey's textual faults are threefold. First. he makes
,,8 Ramsey. Textualism at 9 (cited innote4!.
59 Id.
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Tf:4RAND COASTITUTIONA.L TEU 21
no effort to understand the President's commander-in-chief and executive
powers as independent grants of authority, but only defines them as the
residue of the Declare War Clause. These authorities provide the President
with the initiative and leadership in war, including the power to commence
hostilities. Second, Professor Ramsey ignores important provisions in the
Constitution itself, and in other Founding documents, that demonstrate that
the Declare War Clause does not include the exclusive power to initiate
hostilities. These provisions, such as Article I, Section 10 of the
Constitution, which bars states from "engagjing] in War" without
congressional consent show that when the Framers wanted to require
legislative pre-approval of hostilities, they knew how to do it. Third, the
pro-Congress view of war powers runs counter to the deeper structure of
the Constitution and the nature of the executive power. For someone who
claims to save the pro-Congress school from its "textual embarrassment."?
Professor Ramsey curiously pays little attention to the constitutional text
itself. This part will describe the textual basis for this flexible system of
war powers.
A. Practice and the Commander in Chief"
Professor Ramsey's textual argument is a relatively simple one.
Because declarations of war do not matter much, the power to declare war
must be broader than its terms suggest. In fact, it must include the sole
power to commence military hostilities. Professor Ramsey evidentlv
believes that a textualist approach to discerning the Constitution's
allocation of war powers allows one to read an individual provision in
isolation. This is mistaken. One of the most serious shortcomings of War
and Textualism is its failure to interpret other constitutional provisions that
directly address the making of war. Before paddling headlong toward the
sirens of eighteenth century legal commentary, a textualist interpreter of
war powers ought to first consider the import of the vesting of all executive
power in the President. the Commander-in-Chief Clause, Article I, Section
Hi's prohibition on state warmaking, Article Ill's definition of treason. and
Congress's powers over the raising and supporting of armies. Placing the
Declare War Clause in its textual context shows that the Constitution does
110t define a legalistic procedure for warmaking, but instead creates a
flexible system that permits different variations to be created through the
interaction of the political branches.
While Congress has the power to declare war. the President also
possesses significant war powers, ones that Professor Ramsey does not
address with the same attention that he brings to the Declare War clause.
Article II, Section 2 of the Constitution states that the "President shall be
Commander in Chief of the Army and Navy ofthe United States, and of the
60 Ramsey, Textualism at 8 (cited innote 4)
OCIO-H0312896
X:\FC...\PT1iRFPR(IJFrTS\r.DS-·+'::.FT::';R,nlS(YNRR'· JnR::.t\D.TOOOO I 1R4-r.'Y\")(1 1Ie
22 WAR A:\D CO:YSTITUTIOX4.L TEU
Militia of the several States, when called into the actual Service of the
United States. "1l1 He is further vested with all of "the executive Power" and
the duty to execute the laws. These provisions have long been recognized
to give the President absolute command over the armed forces of the
United States. to the point of ordering their use in hostilities abroad.
Further, the constitutional text nowhere provides that the Commander-in-
Chief power cannot be used by the President to wage military hostilities
unless Congress first issues a declaration of war. While he expends
substantially energy attempting to reconstruct the original understanding of
declaring war. Professor Ramsey never brings the same inquiry to bear on
the original meaning of the Commander-in-Chief Clause. Rather, he
merely assumes that the Declare War Clause must somehow trump the
Commander-in-Chief Clause, and then devotes some afterthoughts to
defining the scope of the executive' s power by the afterglow of the Declare
War Clause.
Professor Ramsey's oversight amounts to a fatal flaw. While he might
believe that the Declare War Clause clearly requires Congress to authorize
military hostilities, he fails to address the text of the Commander-in-Chief
and Executive Power Clauses. As practice shows, many have interpreted
these provisions to allow the President to deploy militarv forces and to use
them both to protect the national security and to advance American foreign
policy interests. The historical record shows that Congress has declared
war only five times, the most recent one more than fifty years ago in World
War II.62 Meanwhile, Presidents have committed military forces to combat
without a declaration of war at least 125 times in the Constitution's 210-
year history.ve Since World War II. moreover, presidents have engaged in
several significant military engagements without a declaration of war or
other congressional authorization. When President Truman introduced
American troops into Korea in 1950, he did not seek congressional
authorization, relying instead on his inherent executive and commander-in-
chief powers. 6-l In the Vietnam conflict. President Johnson never obtained
a declaration of war nor an unambiguous congressional authorization,
although the Gulf of Tonkin Resolution expressed some level of
61 U.S. Const. Art. II. § 2.
62 The other four were the War of 1812,the Mexican-AmericanWar of 1848, the Spanish-
AmericanWar of 1898_ and World War T.
6:, See Office of the Legal Adviser. U.S. Dep't of State. The Legalitvof United States
Participation in the Defense ofViet-nam (1966"!- reprintedill I The VietnamWar and
International Law 583. 597 (Richard A. Falk ed.. 19(8) (125 incidents): Congressional
Research Serv.. Instances of Use of United States Armed Forces Abroad, 1789-1989(Ellen
C. Collier ed.. 1989), reprinted ill Thomas M. Franck & Michael J. Glennon, Foreign
Relations and National SecurityLaw 650 (2d ed. 1993). Critics argue. however, although
most of these interventions either were small-scaleoperations or receivedsome formof
congressional approval.
Yoo. Continuation ofPolitics at 178-79(cited in note 1).
OCIO-H0312897
WAR .-4;VD TEU 23
congressional support for military intervention.se Congress, however,
never approved the expansion ofthe Vietnam War into Laos and Cambodia
by President Nixon.P''
To be sur e, in the wake of Vietnam. Congress enacted the War Powers
Resolution, which places time limits and reporting requi rements on the us e
of American military force abroad.v? Presidents, however, have refused to
acknowledge its legality, and neither Congress nor the courts have shown
any interest in enforcing it. Presidents Ford. Carter, and Reagan, for
example. engaged in several military actions without congressional assent.
although they did submit reports that were consistent (while disclaiming
compliance) with the requirements ofthe Resolution.s" Publicly declaring
that he had the constitutional authority to unilaterally initiate war, President
Bush committed a half-million soldiers to warfare in Operation Desert
Storm for a period of time that violated the War Powers Rcsolution.v?
President Clinton followed these precedents with interventions in Somalia.
Haiti, Bosnia, the Middle East, and, most significantly Kos ovo, none of
which were authorized by Congress."?
This practi ce is an important interpretive tool for several reasons.
Both the Supreme Court and the polit ical branches have oft en recognized
that governmental pract ice plays a significant role in establishing the
contours of the constitutional separation of powers ." Further, the role of
pr actice in understanding the constitut ional text is heightened in the for eign
affairs and national security areas, where an absence of judicial precedent
requires us to examine for authority the long history of inter-branch
interpretat ion and interaction on these questions.?" Finall y, practice shows
that many gove rnment leaders throughout American history have read the
"5 While presidential critics such as Ely and Henkin generally attack unilateral executive
war-making in the postwar period. they lind the Gulf of Tonkin Resolution to amount to
acceptable congressional authorization for war, even though it was not a declaration of war.
See Ely. War and Responsibility at 16 (cited ill note 2 ): Henkin. Constitutionalism at 101-02
(cited in note 2). Other critics, however. believe the Vietnam War was unconstitutional as
well , See. e.g.. Arthur M. Schlesinger• .II, The Imperial Presidency 177-207 ( 1973): .T.
Gregory Sidak. To Declare War, 41 Duke LT. 27 ( 1991): Francis D. Wormuth. The Nixon
Theory of the War Power: A Critique. 60 Cal. L. Rev. 623, 690-94 (1972).
66 See War and Responsibility at 69 (cited in note 2).
Sl!e \\'a r Powers Resolution, Pub. L. No . 93- 148, 87 Stat. 555 (codified at 50 U.S .c. §§
1541-1 548 ( 199·t))
(,8 Yoo. ('01l(iI1110(ioll ofPolitics at 181-82 (cited in note I ).
('9 See id. at 186-88.
- 0 See Yoo. /.:OSOI'O at 1678-83 (cited in note I ).
-1 See. e.g.. Mistretta v. United States, 488 US 361, 38J (1989); Youngstown Sheet & Tube
Y. Sawyer, 343 US 579. 635 (1952) (Jackson• .I.. concurring); United States v. Midwest Oil
Co.. 236 US 459. 473 ( 1915)
.T. Delahunty & John C. Yoo. Tho:': President' s Constitutional Authority to Conduct
Military Operations Against Terrorist Organizations and the Nations That Harbor or SUPP0l1
Them. 25 Han'. .T. L. & Pub. Pol' " 487,503 (2002'),
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24 WARA:vD COXSTITUTIO:v:4L TEU
constitutional text as providing Presidents with the power to commence
military hostilities without congressional authorization. Practice
demonstrates that the political branches have read the constitutional text to
establish a stable. working system of war powers. The President has taken
the primary role in deciding when and how to initiate hostilities. Congress
has allowed the executive branch to assume the leadership and initiative in
war. and instead has assumed the role of approving military actions after
the fact by declarations of support and by appropriations.e
In light of Article II's text, I have argued that the Constitution
constructs a loose framework within which the President as Commander-
in-Chief enjoys substantial discretion and initiative in conducting military
hostilities. At the same time, Congress plays a significant role by
controlling both the resources for war (through funding) and the legal status
of hostilities (through declaring war). One thing the text clearly docs not
do, however, is establish a specific procedure for going to war. Rather. it
simply allocates different, potentially conflicting war powers to the two
branches. Professor Ramsey cannot demonstrate that the constitutional text
compels the sort of smooth, legalistic process upon the exercise of the
Commander-in-Chief and Executive powers that he proposes. Indeed,
when listening to the better angels of his nature. Ramsev has recognized
that Article II's unenumerated grant of powers require that foreign affairs
powers generally be understood as vested in the President. and that any
ambiguities in the allocation of powers involving international relations
must be construed in favor of the executive branch.?"
B. Declaring War and Congressional Consent
Professor Ramsey presumably does not grapple with the executive's
textual war powers because he assumes that the meaning of the Declare
War Clause is clear. Professor Ramsey has quickly reached a conclusion.
however. without taking the time to closely examine the Declare War
Clause itself. The Constitution nowhere defines or uses the phrase
"declare" in the manner suggested by Professor Ramsey. If he were
correct, we should expect the Framers to have repeated the phrase
elsewhere in the Constitution when addressing the same subject. This.
however. the Framers did not do.
Rather, when discussing war in other contexts, the Constitution
employs phrases that indicate that declaring war referred to something less
than the sole power to send the nation into hostilities. In Article L Section
10, for example, the Constitution declares that states may not "engage" in
7;, See Koh, National SecurityConstitution at 123-33 (cited in note 2).
76 See Saikrishna B. Prakash& Michael D. Ramsey. The ExecutivePower Over Foreign
Affairs, 110YaleL.J. 231(200n' -
OCIO-H0312899
WARA:VDCONSTITUTI01\ALTEU 25
war.?? Granting Congress the sole authority to "engage" the nation in war
would have been a much clearer, direct method for vesting in Congress the
power to control the actual conduct of war. To take another example,
Article TTl of the Constitution defines the crime of treason, in part. as
consisting of "levying War" against the United States.?" Again, "levying"
appears to be broader in meaning than merely declaring. If the Framers
had used "levy War" in Article I, Section 8, they certainly would have
made far clearer their alleged intention to grant Congress the sole power to
decide whether to send the United States to war against another country.
When examined more closely. it is clear that Article I, Section 10
deals a crippling blow to Professor Ramsey's efforts to construct a pro-
Congress textualist reading. It states:
No State shall, without the Consent of Congress, lay any Duty of
Tonnage. keep Troops, or Ships of War in time of Peace. enter
into any Agreement or Compact with another State, or with a
foreign power, or engage in Wor, unless actually invaded. or in
such imminent Danger as will not admit ofdelay.
This provision creates exactly the war powers process, vis-it-vis the States.
that Professor Ramsey and others would apply between Congress and the
President. It even includes an exception for defending against sudden
attacks that he and others have read into the Declare War Clause to make
their theory workable. Professor Ramsey simply fails to account for the
difference in language between Article I, Section 8 and Article L Section
10.
If textualists assume that specific texts have specific meanings. they
also must believe that different texts should be interpreted to have different
meanings. If the pro-Congress reading were correct, the Framers naturally
would have written a provision stating that "the President may not. without
the Consent of Congress, engage in War, unless the United States are
actually invaded. or in such imminent Danger as will not admit of delay."
Or, Article I, Section 10 could have said that "No state shall, without the
consent of Congress, declare war.' Instead, the Constitution only allocates
to Congress the declare war power and to the President the Commander-in-
Chief power, without specifically stating - as it does in Article L Section
10 with regard to the states - how those powers are to interact. The
Constitution's creation of a specific, detailed war powers process at the
state level, but its silence at the federal level. demonstrates that the
Constitution does not establish any specific procedure for going to war."?
~ US. Const. art. I. § 10
7
8
1d. mi. III. § 3.
79 ArticleI. Section10prohibits the statesfrom making anv"agreement or compact" witha
foreign power. U.S. Const. mi. I. Section10. In arguing that the President has the authority
to makesoleexecutive agreements, Ramseyhas claimed that this bar onthe states implies
that tile Constitution recognizes certainformsof non-treaty international agreements that are
OCIO-H0312900
26 H>J.R "4SD CO:.V5:iTITUTIO:.\AL TEU
Two additional textual clues support an understanding of the power to
"declare war" as a means of recognizing the legal status of hostile acts,
rather than as an authorization for engaging in war. Congress's power to
declare war is not vested on its own, but instead is palt of a clause that
includes the power to "grant Letters of Marque and Reprisal" and to "make
Rules concerning Captures on Land and Water." Placement of the power
to declare war alongside these other two provisions is significant, because
these latter two clearly involved the power of Congress to recognize or
declare the legal status of certain wartime actions, and not the power to
authorize those actions as a matter of domestic law. Thus, letters of
marque and reprisal allowed a sovereign nation to extend the protections of
the laws of war to private forces acting in coordination with its armed
forces. So Setting the rules conceming captures allowed Congress to
determine the law that would apply to prizes seized by American forces. In
both cases, these powers did not act to authorize hostilities as much as they
determined the legal status of those hostilities. Adding the power to
declare war to these other two in Article I, Section 8, makes perfect sense if
all three involve authorities under international law.
Second. other foundational documents of the period demonstrate that
the Framers thought of the power to begin hostilities as different than the
power to declare war. Under the Articles of Confederation, the nation's
framework of government until the ratification, Congress operated as the
executive branch of the United States 81 Article IX vested Congress with
"the sole and exclusive right and power of determining on peace and
war."ih Here the Framers (several of whom had served in the Continental
Congressj'v had on hand a text that clearly and explicitly allocated to
Congress the "sole and exclusive" authority to decide ("'determining on")
whether to fight a war. If the Framers had intended to grant Congress the
power to commence military hostilities, they could easily have imported
the phrase from the Articles of Confederation into the Constitution. as they
not prohibitedto the federal government. See Michael D. Ramsey. Executive Agreement,
and the (Nonylreatv Power, 77 N.C. L. Rev. 133,162-63 (l9
f)8).
In reaching this
conclusion. Professor Ramsey followed the argument of Myres S. McDougal & Asher Lans,
Treaties and Congressional-Executive or Presidential Agreements: .Interchangeable
Instruments of National Policy: L 54 Yale L.J 181,205 (1945). It is puzzling that
Professor Ramsey would rely on Article T, Section lOin earlier work and yet ignore it here.
80 Yoo, Continuation cfPolitics at 250-52 (cited in note 1t C. Kevin Marshall. Comment,
Putting Privateers in Their Place: The Applicabilityofthe Marque and Reprisal Clause to
Undeclared Wars, 64 U. Chi. L. Rev 953, 974-81 (1997).
81 Yoo. Continuation ofPolitics at 236: Jerrilvn Greene Marston, King and Congress: The
Transfer of Political Legitimacy, ]774-76, at 303(1987).
82 Articles of Confederation mi. IX I1777).
8:3James Madison, for example. had represented Virginia in the Congress. and his
frustrations with the Articles of Confederation had led to his efforts to form a new
Constitution.
OCIO-H0312901
WAR AND TRW 27
did with the powers adjacent to the Declare War Clause.s- For Professor
Ramsey' to be right, the Framers would have had to be clumsy draftsmen
indeed, for they would have deliberately chosen more ambiguous, less
defined words to achieve their meaning when clear examples lay readily at
hand.
As a matter of methodology, it is inexplicable that Professor Ramsey
ignores a document as historically and legally significant as the Articles of
Confederation. Tellingly, he also fails to take into account the state
constitutions, which, after the Articles, were the next most important public
documents of their day. Most of the state constitutions did not explicitly
reserve to their assemblies the power to initiate hostilities. but rather sought
to control executive pmver by disrupting the structural unity of the
executive branch.s'' One state, however, chose to create exactly the type of
arrangement contemplated by Professor Ramsey and other pro-Congress
scholars. In its first 1776 constitution, South Carolina vested in its chief
executive the power of commander-in-chief, but then declared that "the
president and commander-in-chief shall have no power to make war or
peace . . . without the consent of the general assembly and legislative
council." 86 In its 1778 constitution, South Carolina reaffirmed its decision
that the legislature first must authorize war by stating that "the governor
and commander-in-chief shall have no power to commence war, or
conclude peace" without legislative approval. South Carolina's 177fi and
1778 constitutions bear two important lessons. First, they show that the
Framers did not understand the phrase "declare war" to amount to the
power to "make war" or "commence \var"-phrascs the South Carolina
constitution used to refer specifically to initiating war. Second, the South
Carolina constitutions provide an example of constitutional language that
clearly and explicitly created the very legislature-dominated warmaking
system that Professor Ramsey and the pro-Congress camp favor. Yet
those scholars would have us believe that the Framers consciously
established a specific system of legislative authorization by using far more
ambiguous, unclear language in the federal Constitution.
$4 Article IX also gave Congress the power to "establishing rules for deciding in all cases
what captures on land or water shall he legal,' and "of granting letters of marque and
reprisal in times of peace." Both provisions remained substantiallv unchanged in the
Constitution. and, intact. they appear in the same clause as the power to declare war. The
Framers' alteration of Congress' s authority from determining on peace and war to declaring
war, while leaving the other provisions unchanged, indicates an intention to alter Congress's
war power.
$" Yoo, Continuation a/Politics at 222-23: Adams, First American Constitutions at 271
(cited in note IS).
86 S.c. Const. art. x:x.'VI (1776), reprinted in 6 Thorpe, Federal and Stare Constitutions at
3247 (cited in note 25).
OCl0-H0312902
28 HAR A;vD CO;VSTlTUTlOAAL TEU
C. The Meaning a/Declare
"Declare" carried a distinct and separate meaning from "levy,"
"engage,' "make," or "commence,". As even Professor Ramsey would
agree, his work focuses on the meaning of "declaring war" as used by legal
scholars in the period preceding the ratification. He fails, however, to
examine how members of the Framing generation would have understood
those words. As an initial matter, it is useful to examine the way these
words were defined at the time of the ratification. As Professor Ramsey
recognizes, Samuel Johnson's widely-used English dictionary at. the time
defined "declare" as: "to clear. to free from obscurity"; "to make known, to
tell evidently and openly"; "to publish: to proclaim": "to shew in open
view"; or '·to make a declaration, to proclaim some resolution or opinion,
some favour or opposition.i"? TIllS definition suggests that declaring war
recognized a state of affairs and clarified the legal status of the United
States' relationship with another country, rather than authorized the steps to
create that state of affairs.
Because he immediately assumes that declaring war means beginning
war. Professor Ramsey overlooks the definition of the other words used in
the Constitution itself in regard to war. Johnson, for example, defined
"engage" as "to embark in an affair: to enter in an undertaking," or "to
conflict; to fight. "RR Johnson defined "levy" as "to raise, applied to war"89
Other dictionaries of the Framing period similarly drew a distinction
between "declare" and "engage" or "levy." Nathan Bailey's English
dictionary defined "declare' as "to make known, to manifest, publish, or
shew." while "engage" meant "to encounter or fight" and "levy" to
"raise."?" Thomas Sheridan's dictionary defined declare as "to make
known," and engage as "to conflict. to fight" and levy as "to raise. to bring
together men."9
1
All three defined "commence," as used by the South
Carolina constitution, as "to begin" As far as I can determine. no source
defines "declaring war" as commencing or beginning war. while several
clearly find that other words capture that meaning. Thus. the
Constitution's usc of the words "levy" or "engage in" war clearly refer to a
more active role in warmaking, one more in line with the authorizing role
that Professor Ramsey and others hope for in Congress. Even today, we
commonly think of the statutes that establish public programs and
mandates as "authorization" statutes (to be followed by appropriations), not
"declaring" statutes. A declaration does not authorize or make, it
recognizes.
8.. I Samuel Johnson.A Dictional}' of the EnglishLanguage (1755) (1968 reprint).
88Id.
892 id.
90 NathanBailey. An Universal Etymological EnglishDictionary (1782).
91 1110mas Sheridan.A CompleteDictionary of the EnglishLanguage(6
U1
ed. 1796).
OCIO-H0312903
WAR A;VD TEU 29
Properly understanding the meaning of "declare" also requires us to
examine how the Founding generation used the word in other legal
contexts. When the Framers' employed "declare" in a constitutional
context, they usually used it in a juridical manner. in the sense that courts
"declare" the state of the law or the legal status of a certain event or
situation. A sterling example from early American political history
illustrates this narrower meaning. When considering the meaning of
declaring war, the Framers' thoughts no doubt would have turned to their
most significant national legal act, the Declaration of Independence. The
Declaration did not "authorize" military resistance to Great Britain. At the
time that tile Continental Congress met at Philadelphia in 1776 to draft the
Declaration, hostilities had existed for more than a year, and it had been
exercising sovereign powers - negotiating with Britain, sending
representatives abroad, seeking aid - for at least two vears.?" Rather than
authorize hostilities, the Declaration recognized the legal status of the
relationship between the mother country and its former colonies under
international law.va Thus, the Declaration appears in tile form almost of a
complaint, in which the revolutionaries count their grievances (taxation
without representation, suspension of the laws, use of bench trials), the
remedy sought (independence), and the applicable law nhe Laws of
Nature and of Nature's God").
The Declaration of Independence's importance was not in authorizing
combat as a matter of domestic constitutional law, but in transforming the
legal status of the hostilities between Great Britain ancl her colonies from
an insurrection to a war between equals. As a historian has recently
observed in the William and MOTY Quarterly. "in order to turn a civil war
into a war between states, and thus to create legitimate corporate
combatants out of individual rebels and traitors, it was essential to declare
war and to obtain recognition of the legitimacy of such a declaration."94
Once a nation-state, the United States could make alliances and conduct
commerce with other nations. which were critical steps in winning
independence. The Declaration of Independence was the nation's first
declaration of war.'>;}
See David Armitage, The DeclarationofIndependence and InternationalLaw, 59 William
& MaryQ. (3d Series) 39(2002).
9:" Id.: Yoo, Continuation ofPolitics at 246-47(cited in note I).
Armitage,Declaration cfIndependence at _ (cited in note 92).
9" On a different note, manv state constitutionsat the time of theFramingcontained
declarationsof rights that precededthe articles establishingthe powers of the government.
See JohnC. Yoo, Our DeclaratoryNinth Amendment.42 EmoryL..T. 967,970-99 (1993).
Unlikethe Bill of Rights, these declarationsdid more thanplace limits on the enumerated
powers of the government. Rather, theydeclared the existenceof rights and powers
inherent in the People and in individuals. The state declarationsdid not purport to authorize
individual rights on the basis of positive law, but only sought to identityrights thought to
pre-exist constitutionalgovernment, Again, a declarationdid not create, but recognized.
OCIO-H0312904
30
Professor Ramsey's response appears to be that declaring war was
basically useless under international law. Therefore, the grant of authority
in Article L Section 8 must mean something broader, and that something
must be the power to initiate hostilit ies. There are several problems with
such reasoning, which amounts to a "j ust do if' theory of international law.
First, if Professor Ramsey were correct the United States should never
have issued a Declaration of Indep endence: events themselves
demonstrated that the colonies had broken away from the mother country.
Nevertheless. such declarations mattered because they allowed other
countries, such as France, to define their own legal relationships with the
new nation. Second. the United States should never have taken the trouble
to declare war the five times that it has. In each case. the Nation claimed
that it its citizens , or its forces had been attacked. Third. no nation should
ever declare war, because one can apparently declare war simply by
launching an offensive attack. Yet , the British declared war several time s
in conflicts preceding the Framing period - even though these declarations
often came after hostilities had broken out .
96
Declarations of war do serve a purpose, albeit one that does not
amount to the sole authority to initiate hostilities. Declarations do simpl y
what they sa)' they do: they declare. Mor e precisely, they make public.
show openl y. and make known the state of international legal relations
between the United States and another nation. Thi s is a different concept
than whether the laws of war appl y to the hostilities: two nations could
technically not be at war, even though their forces might be engaged in
limit ed combat. Declaring war makes clear that a state of total war exists
between two nat ions. During the eighteenth century. declarations often
took the form of a legal complaint in which a nation identified the grounds
for waging wac explained the new rules that would appl y to interaction
between the two nations. and outlined the remedy that would end
hostilit ies 9 7 Declarations are also important for doniestic constitutional
purposes. Textually. a decl aration of war places the nation in a state of
total war, which triggers enhanced powers on the part of the federal
government .r" Congress has recognized the distinction between declared
total wars and non-declared hostilities by providing the executi ve branch
with expanded domestic powers - such as seizing foreign property,
conducting warrantless surveillance, arresting enemy aliens, and taking
control of transportation systems, to name a few - only when war is
<)6 Yoo. Continuation ofPolitics a1214- 15 (cited in note 11.
<r ld. at 215-16.
<)8 See, e.g. U.S. Const. amend V("No person shall be hell! 10 answer lor a capital. or
otherwi se infamous crime. unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces. or in theMilitia, when in actual service in time of
War or public danger" ).
OCIO-H0312905
WARASD COXSTITUTIO:YiL TEU 31
declared.v? Even the Supreme COUlt has suggested that in times of
declared war, certain actions by the federal government would survive
strict scrutiny that would certainly fail constitutional scrutiny if attempted
in peacetime.'?"
Finally, brief consideration of the interaction between the power to
declare war and the President's powers suggests that Congress cannot have
the sole authority to commence hostilities. Suppose Congress wanted to
engage in war against France, against the President's wishes. Even if
Congress were to declare war against France. the President could still
prevent hostilities from breaking out simply by refusing to order the armed
forces to attack her. All Congress can do is declare the state of the legal
relationship between the United States and France under international law.
Congress's power to declare war cannot amount to the sole power to
initiate hostilities. because the Commander-in-Chief and Chief Executive
Clauses provide only the President with the power to conduct military
operations.
111. War and the Constitutional Structure
Constitutional structure reveals, in even sharper contrast. the problems
with a textualist interpretation of the Declare War Clause that requires
congressional authorization of hostilities. Tn addition to ignoring the
Constitution's use of "declare," Professor Ramsey fails to compare the
Constitution's allocation of war powers with other provisions that govern
the exercise of federal power. According to Professor Ramsey and other
pro-Congress scholars, the Constitution establishes a strict procedure that
requires Congress to first declare or authorize war before the President. as
Commander-in-Chief. can prosecute hostilities. Yet. the Constitution itself
nowhere describes such a process. nor does it explain how the Declare War
Clause and the Commander-in-Chief power must interact. The Framers
simply gave the former to Congress and the latter to the President and left it
at that. Professor Ramsey's reading fails to provide a text-based
explanation of its Congress-first process. .
Professor Ramsey's argument could be characterized as a structural
one. He reads the Declare War Clause to mean more than a power to issue
a declaration of war because otherwise, as he puts it. "it would impose no
substantive limit on the President.'>" This argument misunderstands the
nature of the Constitution' s basic structure. Congress needs no check on
the President through the Declare War Clause because it already possesses
99 See. e.g.. 50 App. U.S.C § 5(b)( 1) (seizureofforeign property); 50 U.S.C §§ lSI L
1829. 1844(electronic surveillance); 50U.S.C § 21 (seizureof aliens): 10 U.S.c. § 2644
(seizureof transportation systems).
'00 Korematsn v. United States, 323U.S. 214 (1944).
10, Ramsey, Textualisni at 50(citedin note4).
OCIO-H0312906
32 Tr:4R AND CONSTITUTIONAL TEU
all the power it needs. Congress at any time may use its power of the purse
to counter presidential warrnaking. Indeed, all Congress need do is
nothing: by refusing to actively appropriate additional money to build
armies and navies or to fund operations, Congress can effectively prevent
the nation from conducting hostilities. Professor Ramsey and others seek
to infuse an unwarranted meaning in the Declare War Clause to solve a
constitutional problem that is not really there.
A. Reading the Constitution as a Whole
The constitutional text makes apparent that when the Framers wanted
to make legislative participation a constitutional requirement in the exercise
of executive functions, they knew how to do so. For example, neither
Professor Ramsey, other pro-Congress scholars. nor I dispute that under the
British constitution. the power to make war was executive. Pro-Congress
scholars simply believe that the Const itution divided the war power
between the President and Congress, with Congress playing the chief role
in deciding whether to wage war, and the President controlling how to
wage war. When the Constitution, however. divides and allocates
executive powers in the manner suggested by Professor Ramsey, it does so
far more clearly than the manner in which it divorced the declare war
power from the other executive war powers. This indicates that the
Framers did not intend war powers to be governed by a specific legalist
process akin to others in the Constitution .
The Treaty and Appointment s power provide a useful illustration of
this point . Article II, Section 2, for example, states that the President "shall
have Power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur ." This
provision makes clear that the President cannot make treaties without
senatorial consent, and it establishes a minimum process for the making of
treaties. Similarly. Article II requires senatorial participation in the making
of appointments, another power that was executive in nature under the
British constitution. Section 2 states that the President "shall nominate. and
by and with the Advice and Consent of the Senate, shall appoint
Ambassadors. other publie Minist ers and Consul s, Judges of the supreme
Court, and all other Officers of the United States."
If the Framers had sought to establish the Congress-first system for
warmaking that Professor Ramsey envisions. why didn't they use the same
framework? Article II. Section 2 could have included an additional
provision that the President "shall have Power, by and with the advice and
consent of Congress. to engage in War ." This would have made clear that
the Constitution requires Congress's permission when beginning military
hostilities, just as the President now needs senatorial consent before making
treaties or appointing Supreme COUIt Justices. Instead. Professor Ramsey
OCIO-H0312907
TfARA:VDCOi\STITUTIO:\AL TEU 33
and other pro-Congress scholars believe that the Framers ineptly chose
ambiguous, obtuse language to allocate war powers in such a manner as to
reach the same functional result as the Treaty and Appointments Clauses.
To be sure. these provisions raise their own interpretive questions.w- which
I have addressing elsewhere, but they take the form of crystals of brilliant
clarity when placed besides the war power clauses.
The absence of a textually mandated and defined process for going to
war is especially clear because the Constitution, in other areas. provides for
specific processes when it is wanted. A comparison to the process for
enacting statutes is illustrative. Although one of the signal defects of the
Articles of Confederation was its inability to directly regulate the private
conduct of individuals, the Framers still sought to render the passage of
legislation difficult. Article I, Section 7 thus sets out a finely-wrought
method for making public laws, with explicit provisions when the consent
of different parties, such as the President, is required. It does not describe
the legislature's role in lawmaking in Article I, and then the President's
veto power in Article II, while leaving blank how the twain shall meet.
Similarly, Article V describes a process for amending the Constitution -
one in which Congress can exercise the initiative - in which the consent of
several actors is precisely outlined. Contrast this with Professor Ramsey's
process for warmaking, which he believes is just as precise: Congress must
provide a declaration of war (presumably by simple majority vote) before
the President can exercise his Commander-in-Chief functions on the
battlefield. If warmaking were to have such process features, involving
congressional initiative and consent, we would expect the constitutional
text to establish as detailed a procedure for warmaking as for lawmaking or
amending the Constitution. Surely, the Framers would have thought war to
be as important as the latter t\VO subjects.
B. War Powers and the Structure ofthe Executive Power
In light of these textual and structural defects with Professor Ramsey's
argument. Tthink it fair to sa)' that, at best, his argument amounts to a claim
that the Constitution does not clearly allocate the power to commence war
in the President. His resort to the international legal scholarship of the
eighteenth century constitutes an effort to show that "declaring war" means
more than it appears to mean, and that the many Presidents who have read
their textual powers to grant them the authority to commence military
hostilities have been in the wrong. Yet, even if Professor Ramsey were
1 O ~ See JOIU1 C. Yoo. Globalism and the Constitution: Treaties.NOll-Self-Execution, and the
Original Understanding, 99Colum, L. Rev, 1955 (1999) (examining whether treatiesmoe
non-self-executing); John C. Yoo, New Sovereignty and the OldConstitution: The
ChemicalWeaponsConvention and the Appointments Clause, 15Const. Commentary 87
( 1998) (discussing applicationof Appointments Clauseto international organizations),
OCIO-H0312908
JrlRs"n.TOOflO .. 1fiM'-.\"('x) 1 IC' RF.sPo\,JSF..' nne
34 n:4R :-LVD COX5iTITUTIOXA.L TEU
successful in introducing doubts into the pro-executive interpretation of the
constitutional text, the deeper design of the Constitution itself requires us to
construe any ambiguities in the scope of the executive power in favor of the
President. Several structural features of the Constitution indicate that any
uncertainty in the authority to initiate military hostilities, as with the war
power generally, must be resolved so as to vest those powers in the
President.
First. it is clear that the Constitution secures all federal executive
power in the President to ensure a unity in purpose and an energy in action.
As Alexander Hamilton famously observed in the Federalist No. 70,
"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 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.P"! This point applies perhaps most directly in war than in
any other context. Wrote Hamilton: "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."
10
5
Second, 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 I provides that "[tjhe executive Power shall be
vested in a President of the United States.·'106 By contrast Article I's
Vesting Clause gives Congress only the powers "herein granted.t'?? This
difference in language indicates that Congress's legislative powers are
10:31l1e Federalist No. 70. at 392 (Alexander Hamilton) (Jacob E. Cooke ed.. 1999).
104 Id, at 391.
lOS ld. No. 74. at 415 (Alexander Hamilton). James Iredell (later an Associate Justice of the
Supreme COUli) argued in the North Carolina Ratifying Convention that "[tjrom the nature
of the thing, the command of armies ought to be delegated to one person only. The secrecy,
d[i]spatch. and decision, which are necessary in military operations. can only he expected
fi·0111 one person." Debate in the North Carolina Rarifying Convention. il/4 The Debates in
the Several State Conventions on the Adoption of the Federal Constitution as Recommended
hy the General Convention at Philadelphia in 1787. at 107 (Jonathan Elliot ed., 2d ed, 1987).
See also 3 Joseph Story, Commentaries on the Constitution of the United States § 1485
( 1833) (stating that in military matters. "[u]nitv of plan, promptitude. activity, and decision,
are indispensable to success: and these can scarcely exist, except whena single magistrate is
entrusted exclusively with the power").
106 U.S. Const. art. II, § 1.
Id. art. L § I.
OCIO-H0312909
WAR AND COXSTITUTION./1L TEU 35
limited to the enumeration in Article L 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.
Nevertheless, 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 redirected some elements of powers that had
traditionally been regarded as "executive" by assigning them to Congress
in Article L while expressly maintaining other elements as enumerated
executive powers in Article n. Hence, for example, they gave the King's
traditional power to declare war to Congress under Article I, while the
Commander-in-Chief authority was expressly reserved for the President in
Article II. Furthermore, the Framers altered other plenary powers of the
King, such as treaties and appointments, assigning the Senate a share of
them in Article II itselp08 Thus, the enumeration in .Article II marks the
places where several traditional executive powers were diluted or
reallocated. The Vesting Clause, however, conveyed all other
unenumerated executive powers to the President. As Alexander Hamilton
famously argued in the Helvidius-Pacificus debates, "[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 qualiftcations
which are expressed in the instrument."109
There can be little doubt that the decision to deploy military force is
"executive" in nature and was traditionally regarded as such. 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 Hamilton, "and the
power of directing and employing the conunon strength [0I111S a usual and
essential part in the definition ofthe executive authoritv.Tv? As a result, to
the extent that the constitutional text docs 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 in
108 Thus, Article II's enumerationof the Treatyand Appointments Clausesonlydilutes the
unitarynature of the executivebranchin regardto the exerciseofthose powers, rather than
transformingtheminto quasi-legislative functions. See Constitutionality of Proposed
Conditionsto Senate Consent to the InterimConvention on Conservation ofNorth Pacific
Fur Seals, ]()Op. Off Legal Counsel 12, 17(1986)("Nothing in the text of the Constitution
or the deliberations of the Framers suggeststhat the Senate's adviceandconsentrole in the
treaty-making process was intendedto alter the fundamental constitutional balancebetween
legislativeauthorityand executiveauthority. ").
109 Pacificus No. L June29.1793. in 15The Papers of AlexanderHamilton 33, 37-43
(HaroldC. Syrett ed. 19(9).
110 The Federalist at 415 tcited in note t(3).
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36 WAR .-LVD COXSTITUTlOX -1 L TE\T
foreign affairs . Hamilton's argument about the Vesting Clause should not
be surprising to Professor Ramsey, who. when writing with Professor Sai
Prakash in other areas of foreign affairs law. has heavily relied upon it.
111
In areas such as treaty termination, for exampl e, Professor Ramsey (with
Professor Prakash) has been only a11 too willing to embrace the notion of
unenumerated executive foreign affairs power s.P" Yet , on the question of
war powers he inexplicabl y reverses the polarit y of the constitutional
structure to claim that the text hems in the President. A consistent
approach to the constitutional structure and executive power in foreign
affairs ought to find presidential authority both to initiate military
hostilities and to terminate treaties. vs
Third. depriving the President of the power to decide when to use
military force would disrupt the basic constituti onal framework for the
conduct of foreign relations. From the beginn ing of the Republic, the
vesting of the executive, Commander-in-Chief and treaty powers in the
executi ve branch has been understood as granting 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 executi ve 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 , "[tjh e 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 .. . ." 11oJ In
defending President Washington's authorit y to issue the Neutrality
Proclamation, 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 definiti on of Executive Power: leaving the rest to flow from
the general grant of that power .. . .--115 As future Chief Justice John
Marshall famously declared a few years later. ' T he 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 nati on _. . .-'116 Given the agreement of
III See generallyPrakash & Ramsey. Execu tive Power (cited ill note 76) .
112 ILl . at 264-65. 324-27.
l1:?o On this question, at least. my positions have the virtue of remaining consistent. SeeJOIUl
Yoo, Politics as Law?: The Anti-Ballistic Missile Treaty. the Separation of Powers, and
Treaty Interpretation. 89 Cal. L. Rev, 851. 869-77 (2001) (President has plenaryauthority to
terminate. suspend. or interpret treaties).
1 1 ~ Thomas Jefferson, Opinion on the Powers of the Senate ( 1790). reprinted ill 5The
Writings of Thomas Jeffers on 161(Panl L Ford ed., 1895).
11" Pacificus No I at 39 (cited in note 109)
11(, 10 AnnaIs of Congo613-14 (18( 0).
OCIO-H0312911
WAR AND TEU 37
Jefferson, Hamilton, and MarshalL it has not been difficult for the
executive branch to consistently assert the President's plenary authority in
foreign affairs ever since.
A final structural point is worth emphasizing. Much of the support for
broadly interpreting the power to declare war, it seems to me, arises out of
concerns about unchecked presidential warmaking, In Professor Ramsey" s
view, for example, the Declare War Clause must encompass the power to
commence hostilities, because otherwise "it would impose no substantive
limit on the President. "117 Professor Ramsey' s argument tries to show that
declarations of war are so meaningless that the Constitution's reference to
them must portend some greater power - even if that power is 110t borne by
the text's actual meaning. Thus, like other pro-Congress scholars before
him, Professor Ramsey seeks to convert declaring war, which specifically
functioned under international law to determine the legal status of
hostilities, into a domestic legal check on the executive branch. Otherwise,
Congress simply cannot control the President!
Such concerns, however, misunderstand the Constitution's grants of
power to Congress in war matters, which give it an effective role in the
commencement of military hostilities. Congress, for example, has the sole
authority "raise and support Armies, ,- to "provide and maintain a Navy. ,-
and to "make Rules for the Government and Regulation of the land and
naval Forces. "118 Without the legislative establishment and funding of the
armed forces, Presidents have no weapons with which to wage war. The
appropriations power ancl the power to raise the military give Congress a
sufficient check on presidential warmaking, a concept that the Framers well
understood. In fact, in the America of the late eighteenth century.
Presidents did not enjoy the resources to commence meaningful hostilities
on their own. After the peace with Great Britain, the United States did not
maintain a large standing anny or navy in peacetime, and did not really do
so until the Cold War. In the nation's first military conflict under the
Constitution. President Washington continually had to seek congressional
funding for campaigns against Indian tribes."? In fighting the Quasi-War
with France (the nation's first war against a European nation under the
Constitution, which, incidentally, was not accompanied by a declaration of
war even though the United States had not been attacked). President Adams
had to seek congressional approval for a navy and army with which to
conduct hostilities.w' In the course of approving these measures, Congress
fully discussed the merits of the wars. and it easily could have prevented
See Ramsey. Textualism at 50(cited in note4).
118U.S. Const. mi. L § 8.
119RichardH. Kohn, Eagle and Sword: The Federalistsand the Creationof the Military
Establishment in America. 1783-1802, at 97-98, 110-11, 120-24(1975).
120 Alexander DeConde, The Quasi-War: The Politics andDiplomacyof the Undeclared
War withFrance 1797-1801. at 90-96 ( 1(66).
OCIO-H0312912
38
the commencement of hostilities simply by refusing to do anything.
This pattern has been repeated in our recent modern wars. In the war
against the al Qacda terrorist organization and the Tal iban militia in
Afghanistan. for example, President George W. Bush sought additional
funding for military operations that gave Congress the opportunity to
oppose the confli ct.>' Similarly, in 1999 President Clinton sought
emergency funding to allow the military to conduct operations in Kosovo
and Serbia.' > In both cases, Congress could have effect ivel y blocked the
conduct of hostilities by refus ing to appropriate the funds, Professor
Ramsey's structural argument - that the Declare War Clause must give the
power to Congress to decide whether to commence hosti lities, becau se
otherwise it would give Congress no check on the President - simplylooks
for the answer in the wrong places. There is no doubt that the Constitution
provides Congress with a powerful check on warmaking, but it comes
through the authority to grant or deny funds to wage war.
CONCLUSION
This Response sought to accomplish two miss ions. First, it attempted
to demonstrate that Professor Ramsey's usc of hist ory suffers from
significant flaws. His effort to show that the Framers underst ood the
phrase "declaring war" as vesting Congress with the sole power to begin
milita ry hostili ties failed to obey the basic standards for using historical
materials, misinterpreted the relevant primary sources. and ignored the
leading accounts of early Amer ican constitutional development. Second.
this Response has sought to distill the textual and structural arguments in
favor of a flexible approach to war powers . Careful examination of the
central provisions invol ved, other relevant texts, and the constitutional
structure shows that the Constitution does not mandate a specific, legalistic
process for waging war. Instead. the Constitution vests the executive and
legislati ve branches with different powers involving war, which the
President and Congress may use to cooperate or to compete. The fl exibility
of the constitutional framework for warmaking becomes clear when
compared to. for example, the Constitution's finely-wrought procedures for
enacting a statute, ratifying a treaty. or appointing officers of the United
States. If the Framers had int ended the Constitution to impos e the strict
process demanded by Professor Rams ey and other pro-Congress ' scholars.
they would have employed the more detailed mechanisms and language
that they used elsewhere.
While the debat e over war powers is of great intellectual interest. it is
121
' » See Yoo, Kosovo at 1681 (c ited in note I ).
OCIO-H0312913
WARA:'vD CON,"'TITUTION:J.L TRW 39
important to remember that it has important practical implications.
Professor Ramsey's approach, like that ofother pro-Congress scholars, has
three primary effects on the conduct of for American national security in
the modern world. First, a legalistic system that requires congressional
authorization of all hostilities would find many, if not most wars waged
since the dawn of the atomic age to be unconstitutional. Under Professor
Ramsey's theory, conflicts ranging from the Korean War in 1950 to the
intervention in Kosovo in 1999 have flatly violated the Constitution due to
the lack of congressional authorization for the hostilities. Given the
imperatives for quick and decisive military action in the modern world, and
Congress's demonstrated preference to allow the President to lead, it seems
unlikely that tins practice will change. Professor Ramsey and his
colleagues, therefore. seek to overthrow the operating system of war
powers that has been in existence since at least the end of World War II, if
not before, with the consent of both branches of government.
Further, Professor Ramsey's theory renders trivial those times that the
nation has taken the serious step of declaring war. In all five of our
declared wars. the United States could make a strong case that it had been
attacked. According to Professor Ramsey, in such cases a declaration of
war is whollyunnecessary. In effect, Professor Ramsey must conclude, the
United States has failed to declare war when it needed to. and the United
States has declared war when we didn't need to.
Second, Professor Ramsey, like other pro-Congress scholars. must
admit that their approach contemplates a dramatic expansion in the judicial
role in foreign affairs. If tile President orders military hostilities without
congressional authorization, then he has violated the Constitution, and
presumably a properly situated plaintiff - such as a reservist called to duty
- could bring a challenge in federal court to a war. Judicial intervention in
war would have two obviously deleterious effects. It would seriously
undermine the ability of the .President to protect the national security -
imagine the consequences if the President were constantly forced to await
judicial resolution of a case before using force abroad to protect the
nation's interest. A broader judicial role in warmaking also would threaten
defiance of the federal courts: if there ever were a situation in which a
President would feel the need to disregard a judicial order. it would be in a
case in which he believed his actions were necessary to protect the nation
with military force. And it goes without saying that Professor Ramsey's
theory would foist upon the federal courts a job that they do not want,
witness the D.C. Circuit's recent holding that the constitutionality of the
Kosovo war was nonjusticiable.
Third, Professor Ramsey and other pro-Congress scholars would
impose upon the country a strict. legalistic process for making war
precisely at a time when the utmost flexibility is required. Forcing
Presidents to receive congressional authorization before using force would
OCIO-H0312914
40 WARA;VDCO;VSTITUTIO;V:J.L TEU
seriously hamper the nation as it confronts the challenges posed by terrorist
organizations and rogue nations. According to Professor Ramsey's
approach, for example. American attacks against terrorists, when not
authorized by statute, would fall afoul of the Constitution. Thus. President
Reagan's strike on Libya in 1986, and President Clinton's missile attack on
Sudan and Afghanistan targets in 1998 were illegal and, one imagines.
possibly subject to judicial injunction or damages. This view would place
serious restrictions on the United States' ability to respond to the terrorist
attacks of September 11, 2001. Although Congress has approved the use of
force - though not declared war - against those connected with the
September 11 attacks,t2
3
it has not provided legislative authorization for
military attacks against terrorist groups, unconnected with the September
11 attacks, or the nations that harbor them. Thus. even if the President
believes certain terrorist groups and rogue nations pose a future threat to
the United States by, for example. attempting to acquire weapons of mass
destruction, Professor Ramsey and others would prevent him from
attacking such potential enemies unless Congress declared war or the
United States suffered an attack first. One can only imagine the advantage
that terrorists or rogue nations would draw from public congressional
deliberations. which might give them the advance notice of a possible
attack necessary to conceal their forces or disperse their weapons facilities.
Properly understood, the Constitution does not require such a result.
As this Reponse has demonstrated, the Constitution's text and structure
allow a flexible system of war powers in which the President can seize the
initiative to wage war, subject to congressional control over funding. It is a
system that not only has proven stable over the last half-century. but one
that empowers the nation to take the measures necessary to fight the new
type of war that was thrust upon in on September 11, 2001. Instead of
using the Constitution to fight the last war. we should understand the
Constitution with an eye to the next.
'"3 S.J. Res. 23. Pub. L. No. 107-40, 115 Stat. 224 (2001).
OCIO-H0312915

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