America after the meltdown: foreign policy and the next president.

Author:Freeman, W., Jr.

Fundamental U.S. legal documents and authoritative commentaries as well as historical precedents show that in wartime presidents have extraordinary powers to act in defense of the nation, powers they have exercised on many occasions, according to this essay by an Assistant U.S. Attorney and American Diplomacy contributing editor.--Ed.

Presidential War Powers in Historical-Legal Context

Francis Sempa

President George W. Bush's exercise of war powers since the attacks of September 11, 2001, have included the following:

  1. launching military operations in Afghanistan;

  2. taking preemptive military action in Iraq;

  3. conducting warrantless wiretap surveillance of suspected terrorists who communicate with others overseas;

  4. law enforcement infiltration of suspected terrorist groups in this country;

  5. tougher and expanded law enforcement powers under the Patriot Act; and

  6. detaining enemy combatants and prosecuting them in military tribunals instead of civil courts.

    Recent Supreme Court decisions have sought to restrict some of these powers, especially denial of access to civil courts for detainees that the president has characterized as "enemy combatants." (1) How the President and Congress will respond to those court decisions is as yet unclear.

    All too often, discussions and debates about President Bush's exercise of war powers during the current conflict have ignored or downplayed the historical-legal context of presidential powers during wartime or emergencies. When viewed in that context, they are less exceptional and less drastic than often portrayed.

    To examine the exercise of presidential war and emergency powers it is necessary to review:

  7. the Constitution and related founding documents, especially the Federalist Papers;

  8. the actual exercise of war powers by presidents since George Washington; and

  9. how our courts have reacted to the legal challenges to the exercise of presidential war and emergency powers.

    The Constitution and Founding Documents

    The Constitution makes the President Commander in Chief of the armed forces and he is vested with the "executive power"--the power to execute the laws. These are very broad, undefined powers--deliberately so. The Framers of our Constitution had been through a long war with Great Britain, and had experienced the drawbacks of a weak central government without a strong, independent executive under the Articles of Confederation. The Framers were also students of history and political theory who understood that wars, emergencies, and crises would arise and would need to be dealt with by strong, decisive executive power.

    In Federalist 70 and 74, Alexander Hamilton wrote about the need for "energy in the executive" that it is "essential to the protection ... against foreign attacks." The executive will need to exercise "decision, secrecy, and dispatch." "Of all the cares or concerns of government," he wrote, "the direction of war most peculiarly demands those qualities which distinguish the exercise of power" by the executive. In Federalist 23 Hamilton discussed the creation of a federal government "clothed with all the powers requisite to the complete execution of its trust." Because "the circumstances which may affect the public safety are not reducible within certain determinate limits ... it must be admitted as a necessary consequence that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficiency." In Federalist 34, Hamilton stated that the federal government should possess "an indefinite power of providing for emergencies as they might arise." And James Madison wrote in Federalist 41 that "security against foreign danger is one of the primitive objects of civil society ... The powers requisite for attaining it must be effectually confided to the federal councils."

    Although the Founders gave Congress the power to "declare" war, they understood that this power did not constrain the President's independent and constitutionally-based authority to use military force to protect the nation. An earlier draft of the Constitution gave Congress the power to "make" war, but the Convention changed the clause from "make" to "declare." One supporter of the change noted that this would "leave to the Executive the power to repel sudden attacks." (2)

    The notion of broad presidential powers during wartime is further buttressed by the president's paramount authority in foreign policy. The text and structure of the Constitution grants the president the leading, though not exclusive, role in conducting relations with other countries. In 1790, Thomas Jefferson opined that "the transaction of business with foreign nations is executive altogether; it belongs to [the executive], except as to such portions of it as are specially submitted to the Senate." (3) In 1800, John Marshall, the future Chief Justice, wrote that "the President is the sole organ of the nation in its external relations, and its sole representative with foreign nations ... He possesses the whole Executive power. He holds and directs the force of the nation." (4) In 1937, the Supreme Court, in United States. v. Curtiss-Wright Corporation, noted "the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations--a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution." When the president acts in the international field, the Court explained, he possesses "a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved." The President, not Congress, wrote the Court, "has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war." (5) (Emphasis added).

    One of the political theorists that the Framers looked to in constructing the new government was John Locke, who defined executive power as "the power to act according to discretion for the public good, without the...

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