Clear statement rules and executive war powers.

• Author: Bradley, Curtis A.
• Position: Separation of Powers in American Constitutionalism

The scope of the President's independent war powers is notoriously unclear, and courts are understandably reluctant to issue constitutional rulings that might deprive the federal government as a whole of the flexibility needed to respond to crises. As a result, courts often look for signs that Congress has either supported or opposed the President's actions and rest their decisions on statutory grounds. This is essentially the approach outlined by Justice Jackson in his concurrence in Youngstown. (1)

For the most part, the Supreme Court has also followed this approach in deciding executive power issues relating to the war on terror. In Hamdi v. Rumsfeld, for example, Justice O'Connor based her plurality decision, which allowed for military detention of a U.S. citizen captured in Afghanistan, on Congress's September 18, 2001, Authorization for Use of Military Force (AUMF). (2) Similarly, in Hamdan v. Rumsfeld, the Court grounded its disallowance of the Bush Administration's military commission system on what it found to be congressionally imposed restrictions. (3)

The Court's decision in Boumediene v. Bush (4) might seem an aberration in this regard, but it is not. Although the Court in Boumediene did rely on the Constitution in holding that the detainees at Guantanamo have a right to seek habeas corpus review in U.S. courts, it did not impose any specific restrictions on the executive's detention, treatment, or trial of the detainees. (5) In other words, Boumediene was more about preserving a role for the courts than about prohibiting the executive from exercising statutorily conferred authority.

Statutory authority was also a central issue in the much-discussed Al-Marri case in the Fourth Circuit. (6) Although the Supreme Court vacated the Fourth Circuit's decision as moot, the decision still provides an instructive example. Al-Marri involved a Qatari citizen, All Saleh Kahlah al-Marri, who came to the United States on September 10, 2001, and was later arrested and charged with various counts of fraud. (7) Shortly before al-Marri's trial, President Bush designated him an enemy combatant, and he was moved to military custody. (8) As justification for this action, the Bush Administration alleged that al-Marri was an al Qaeda sleeper agent who had come to the United States to await instructions to carry out further attacks after September 11. (9)

In a closely divided en banc ruling, the Fourth Circuit held that the executive had the authority to detain al-Marri but that it needed to provide him with additional process by which he could challenge his designation as an enemy combatant. (10) The Supreme Court granted review of the decision in December 2008. (11) When briefing the case for the Court, al-Marri focused primarily on statutory arguments, saving a fallback constitutional argument for the end of his brief. (12)

At the core of al-Marri's argument was the contention that, to find congressional authorization for the military detention, courts should insist on a clear statement that Congress supported the executive's action. (13) Although the Bush Administration argued that the AUMF gave it statutory authority to detain al-Marri, the AUMF does not mention detention, let alone detention of someone apprehended in the United States. (14) As a result, al-Marri argued that the requisite clear statement was lacking.

The Bush Administration responded to this argument with the following syllogism: Because the plurality in Hamdi construed the AUMF to authorize the military detention of enemy forces as a fundamental incident of waging war, and because al-Marri was alleged to be an agent of al Qaeda, which was one of the enemy groups encompassed by the AUMF, the AUMF authorized al-Marri's detention. (15) Based on this reasoning, the Administration contended that no clearer statement of authorization was needed. (16)

Although the Obama Administration rendered this case moot by deciding to try al-Marri in a regular criminal court, (17) the clear statement issue posed by the case is a recurring one and thus worth considering. Indeed, it has already come up in other areas in the war on terror--for example, with respect to whether the AUMF authorizes warrantless electronic surveillance of communications, going into and out of the United States, with alleged members of al Qaeda. (18) Moreover, to an even greater extent than the Bush Administration, the Obama Administration has grounded its authority in the war on terror on purported statutory authorization. (19)

There have been both liberal and conservative claims about the potential role of a clear statement requirement in the context of executive war powers. On the liberal side, some commentators such as Cass Sunstein (20) and judges such as Justice Souter have contended, in effect, that a clear statement is necessary for congressional authorization of executive wartime action whenever liberty interests are at stake. (21) There are several problems with this approach.

As an initial matter, executive wartime actions inherently affect liberty. People are bombed and shot and captured. These actions necessarily have substantial effects on liberty, and yet there is often no expectation, by either the courts or the political...