This panel discussion asks us to consider continuities in the exercise of presidential war powers from the administration of George W. Bush to the administration of Barack Obama. I agree to a large extent with what has become conventional wisdom-that despite candidate Obama's criticism of President Bush, once candidate Obama became President Obama, large areas of continuity arose. Particularly in the war on terror, examples spring readily to mind: detaining terrorism suspects without trial at Guantanamo and elsewhere; conducting trials of terrorism suspects by military commission; and energetically using military force abroad against terrorist groups, not only in Afghanistan but also in Pakistan, Somalia, and Yemen.
I want to dissent, however, from the panel's implicit premise that continuity should be the principal theme in examining the exercise of presidential war powers between the Bush and Obama administrations. Despite persistent and at times shrill complaints that President Bush exceeded his constitutional authority, in several fundamental respects we have experienced wider assertions of unconstitutional executive authority under President Obama, to much more muted criticism. I want to focus on that contrast.
This expansion of presidential war powers should be a concern at a conference focused on a Constitution of limited government. I do not think the Framers envisioned a national security exception to the idea of constitutionally restrained power. Many of the constitutional provisions that the Framers wrote were specifically directed at national security issues and, moreover, were specifically directed at effecting a separation of powers and a checking function in those areas. (1)
The constitutional checks in national security law have come under more stress in recent times, and the Obama Administration has been especially aggressive in ways the Bush Administration was not. Consider two examples.
The first is the recent intervention in Libya. I think it is clear that the Constitution's original meaning does not allow the President to initiate war, at least in the absence of an immediate threat of attack on the United States. This restriction comes from the Declare War Clause, (2) which the Framers understood as shorthand for initiation of war. The phrase "declare war" was used in two ways during the eighteenth century: A nation could declare war by a formal declaration or it could declare war by initiating the use of armed force. (3) The Framers disagreed on many things in their comments about their handiwork, but Madison, Hamilton, Washington, Jefferson, Marshall, and others agreed that the President could not begin war on his own authority. (4)
In Libya, there is no doubt, despite what the administration might say, (5) that the President initiated war on his own authority. (6) The Libya intervention is clearly a war in the eighteenth-century sense--"the exercise of violence under sovereign command." (7) A sustained military attack on a foreign sovereign government to force it to do our will must surely qualify as war. (8) Therefore, we have in Libya a manifest violation of the Constitution's original meaning regarding war powers.
In contrast, this behavior is not something we saw in the Bush Administration. President Bush honored the constitutional limit on initiation of war. He sought and received approval from Congress to use military force in the war on terror, (9) even though it was not entirely clear that the President needed approval to respond to an attack on the United States. The President, in my view, has significant independent authority to respond to such an attack. (10) But by seeking congressional approval, rather than relying on a contested version of the Executive's independent powers, President Bush assured that his military responses to the attacks of September 11, 2001, in particular the subsequent intervention in Afghanistan, did not transgress the separation of powers. In addition, although some advisers suggested that congressional authority to invade Iraq was unnecessary, President Bush sought and obtained congressional approval for that operation as well. (11) Conversely, President Bush did not attack Iran in 2007 or 2008 in response to Iran's potential development of a nuclear weapons program, despite some urging that he do so. (12) At that time Congress clearly would not have authorized an attack on Iran. (13) No doubt other considerations went into the decision to refrain from attacking Iran as well, but it is nonetheless notable that President Bush obtained congressional approval for major military actions in Iraq and Afghanistan and refrained from acting in Iran when approval was not forthcoming, in sharp contrast to President Obama's approach in Libya.
My second example of an unconstitutional use of executive power is the drone attack that killed U.S. citizen Anwar al-Awlaki in Yemen in 2011. (14) Arguably, Congress approved this action in the 2001 Authorization for Use of Military Force (AUMF), but even with congressional...