INTRODUCTION I. FRAMEWORKS OF PRESIDENTIAL AUTHORITY A. Constitutional Framework B. Statutory Framework 1. War Powers Resolution a. Hostilities b. Emerging Military Tactics 2. Authorizations for Use of Military Force 3. Electronic Surveillance and the Foreign Intelligence Surveillance Act a. Surveillance Programs Under the Bush Administration b. Metadata Collection 4. Consultation and Reporting of Intelligence Activities C. Inherent Authority of the Executive Branch 1. Bush Actions on September 11 2. Executive Actions for Enemy Combatants II. SEPARATION OF POWERS FRAMEWORK FOR PRESIDENTIAL AUTHORITY A. The Role of the Court 1. Deference to Executive Power 2. Justiciability Issues a. Standing b. Political Question Doctrine B. The Role of the Legislature III. THE 21ST CENTURY FRAMEWORK OF SEPARATION OF POWERS A. Syria's Red Line B. Islamic State of Iraq and the Levant (ISIL) C. CIA Torture Report IV. CONCLUSION INTRODUCTION
On the morning of March 19, 2003, President George W. Bush met with his national security team that included Vice President Dick Cheney, Secretary of State Colin Powell, Secretary of Defense Don Rumsfeld, Chairman of the Joint Chiefs Richard Myers, and Central Intelligence Agency Director George Tenet. (1) The Bush Administration had been working for months with Congress, American allies, and the United Nations to decide on an appropriate response to Iraqi President Saddam Hussein's refusal to allow U.N. inspectors into Iraq to search for chemical weapons.
Before a renovation in 2007, the White House Situation Room was a relatively small, wood-paneled room in the basement of the West Wing, located adjacent to the White House Mess. The President, as he always did, sat at one end of a rectangular conference table that sat only ten people comfortably. I was in my usual chair away from the table, just off to the President's right. On the opposite wall facing the President was a bank of video screens. General Tommy Franks and other regional military commanders provided status updates by video teleconferencing to the President. (2)
After each commander spoke, the President asked whether the troops had what they needed and were ready to go. No one expressed reservations. General Franks replied, "Forces ready." After months of preparation and planning for multiple contingences, and hours of discussion, the President asked for the name of the military operation. He was told, "Operation Iraqi Freedom." (3)
The room was silent as the President focused on the largest of the screens and addressed General Franks. He said, "Tommy, I have been briefed by the Secretary of Defense and have now received these briefings. For the sake of the peace and freedom of the Iraqi people and for the sake of the peace and freedom of the world, I hereby give the order to execute Operation Iraqi Freedom." Pausing momentarily and then speaking with obvious emotion he said, "Tommy, may God bless the troops." (4)
General Franks stood and saluted, "Mr. President, may God bless America." President Bush rose from his chair, returned the salute, and quickly walked out of the Situation Room without saying another word. (5)
When the President of the United States rises during a meeting or leaves a room, protocol dictates that anyone who is seated should stand. However, no one moved for several seconds as President Bush departed. Those of us left seated had just witnessed history. (6) Like President Lincoln at the outset of the Civil War, President Wilson at the outset of World War I, and President Roosevelt at the outset of World War II, for the second time during his presidency, President Bush had ordered men and women into harm's way. In both cases, American military forces were introduced into hostilities with congressional authorization, authority carefully crafted by lawyers in Congress and in the executive branch. (7) However, congressional approval for the use of force has historically been the exception and not the rule. (8)
The Constitution does not use or refer to the terms "national security" or "foreign affairs." Thus, the scope of power that the executive branch has to act independently of the other government branches in the national security arena is one of the most difficult questions to answer in constitutional law. Congress has passed a number of statutes empowering the President to take actions necessary to protect our national security, but on relatively few occasions has Congress authorized the President to use force through declarations of war. (9) However, undeniably, the historical record is filled with hundreds of examples of presidential action in the name of national security without congressional approval. (10)
Some scholars and historians question the President's authority to act alone, as have some members of Congress. (11) Yet very few of these disputes have ever been resolved in the courts. To the contrary, as national security threats have be come more dangerous and incidents of unilateral action have become more common, it appears that the most effective check on the executive branch in dealing with a national security crisis has less to do with the other branches of government and more to do with the media, public opinion, and the popularity of the President.
Admittedly, there exists already a significant amount of scholarship on this question of executive branch power. As Counsel to the President, my job was to work with Attorney General John Ashcroft and other senior lawyers in the Bush Administration to advise the President on the limits of his power to protect America. When I became Attorney General in 2005, I assumed the primary role for that responsibility. In this article, I will explain how I approached this question then from an insider's perspective, based on a straightforward framework of necessity balanced against accountability.
This article will begin with a brief summary of the three sources of power most commonly cited by judges and scholars. The first is authority expressly granted by the U.S. Constitution. (12) The second is authority granted by Congress by statute or, with respect to war making, through a declaration of war or authorization to use force. (13) Readers should understand that while the text of the Constitution or a congressional statute may appear unambiguous, the authority of the executive branch to exercise discretion in the execution of our laws affords the President great flexibility. This in turn often gives rise to disagreements between the elected branches over the scope of power even when a statute or the Constitution appears unambiguous on its face. The third source is inherent or implied authority emanating from the Constitution. (14) The President's reliance on inherent authority based upon historical practice and necessity most often gives rise to the greatest tension between the elected branches.
Following this introductory summary, I will discuss the apparent reluctance of our courts to decide cases involving national security matters either by declaring a legal dispute a political question or by relying on principles of standing. (15) Then I will discuss the checks available to Congress to limit executive power--checks that are rarely used. I will then explain why today's threats require the President to have the authority to act quickly and decisively. By way of example, I will discuss how I might have advised the President (based on information in the public record) with respect to three recent national security situations. Scenario number one: Syrian President Bashar al-Assad used chemical weapons against the Syrian people in 2013 in spite of warnings by the United States that doing so would cross a red line. If the President had chosen to do so, did he have authority to use force against the al-Assad regime without congressional authorization? Scenario number two: a member of the Islamic State of Iraq and the Levant (ISIL) recently beheaded three American citizens. What is the scope of the President's authority, independent of Congress, to respond? Scenario number three: The Senate Intelligence Committee released a report condemning practices of the Central Intelligence Agency (CIA) after September 11 as torture and alleging lack of oversight and management of the program. What level of oversight should be in place to check the executive branch's power over controversial issues such as enhanced interrogation of suspected terrorists?
Although the questions posed by these three scenarios do not lend themselves to easy answers, they do demonstrate how a basic framework, when consistently applied, can provide predictability to our friends and allies. It also helps to ensure that executive branch action does not exceed constitutional limits. The Framers of the Constitution created a government of separate branches with the hope that there would always be one branch to check the power of another, and thus prevent tyranny. (16) When the Framers drafted the Constitution, the most dangerous threats were crude cannons and muskets. The initial balance between executive accountability and flexibility was created in this milieu. (17) The world has changed since then, as has the magnitude of the threats to U.S. interests. While accountability and flexibility remain important, the balance between the two has arguably shifted.
Based upon my experiences and study, I believe the Framers intended for the executive branch to be able to act with speed and agility to respond to threats and crises. (18) Today the ability to act rapidly...