Parsing the commander in chief power: three distinctions.

Author:Bradley, Curtis A.
Position:The Powers of the Commander in Chief in the Struggle Against Terrorism - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

The panel was convened at 2:45 p.m., Friday, March 31, by its chair, Curtis Bradley of Duke University of Law, who introduced the panelists: David Golove of the New York University School of Law; John Harrison of the University of Virginia School of Law; Thomas Hemingway of the Office of Military Commissions; and Deborah Pearlstein of Human Rights First. *


As Justice Jackson noted in the Youngstown steel seizure case, the Commander in Chief Clause has "given rise to some of the most persistent controversies in our constitutional history." (1) That clause is being invoked by the executive branch in connection with a number of contemporary controversies, including the military detention of suspected terrorists, the use of military commissions to try terrorists, and the National Security Agency's post-September 11th program of warrantless surveillance.

In considering the powers of the commander in chief in these contexts, it is useful to keep in mind several distinctions: between the President's statutory and constitutional authority; between the President's inherent and exclusive constitutional authority; and between international law as an external limitation and international law as an internal limitation on the President.

First is the distinction between the President's statutory authority and his constitutional authority. When Congress has granted the President the authority to carry out a war-related activity, courts are likely to defer to the combined judgment of the political branches, and will typically avoid reaching the question of whether the President would have had the authority to carry out the action in the absence of congressional authorization. In these situations, presidential action will fall within the highest category of the framework suggested by Justice Jackson in Youngstown for evaluating claims of presidential authority and therefore will be "supported by the strongest of presumptions and the widest latitude of judicial interpretation." (2)

In Hamdi v. Rumsfeld, for example, the Supreme Court concluded that President Bush had the authority under the Authorization for the Use of Military Force (AUMF), which Congress enacted shortly after the September 11 attacks, to detain a U.S. citizen who had been captured during the fighting in Afghanistan, and the Court declined to reach the question of whether the president would have had this authority in the absence of...

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