Wednesday, February 08, 2006

Top Ten War Power Myths

The Senate Judiciary Committee hearings on war powers have brought to light a number of less than wholly accurate assertions and assumptions about wartime authorities. Here are ten of my favorites.

1. The Foreign Intelligence Surveillance Act (FISA) does not apply in wartime.

FISA specifically addresses wartime considerations:
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

2. The President has sole constitutional authority to conduct foreign policy.

Article II of the Constitution gives the President power to make treaties, but they must be approved by two thirds of the Senate. Article I says that all bills for raising revenue--which would include appropriations for foreign aid--must originate in the House of Representatives.

3. The Bill of Rights becomes void in time of war.

Article I gives Congress the power to suspend the writ of the privilege of habeas corpus "when in cases of rebellion or invasion the public safety may require it." This is the only mention in the Constitution of infringement of a civil liberty in wartime.

Bush supporters have claimed this power also applies to the President, citing Lincoln's suspension of the habeas writ to several war protesters during the Civil War. They neglect, however, to mention the case of ex parte Merriman, in which then Chief Justice Roger Taney ruled that Congress alone had the constitutional authority to suspend the writ.

4. The War Powers Resolution of 1973 unconstitutionally limits the President's ability to wage war.

This is one of Vice President Cheney's favorite mantras, and like so much of what Dick Cheney says, it's almost entirely delusional. A better argument says that the Resolution is unconstitutional because it gives a President too much power.

In a nutshell, the Resolution limits the time that a President may commit forces to combat to a maximum of 90 days without specific statutory authorization or a declaration of war from Congress.

The Constitution itself grants the President no authorities whatsoever to send troops into combat without Congressional approval.

5. In the case of Hamdi v. Rumsfeld, the Supreme Court upheld the President's right to spy on Americans without court orders.

Attorney General Alberto Gonzales made this assertion several times during the recent Senate Judicial Committee hearing. But as Senator Russ Feingold (D-Wisconsin) and others correctly pointed out, the Court's written decision said nothing about spying or electronic surveillance.

6. The President has the authority to ignore international treaties like the Geneva Convention and the United Nations Convention on Torture because they are not part of United States Law.

From Article VI:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land [.] (Italics added.)

7. It is the job of the Attorney General and other key administration attorneys to determine the scope of the President's constitutional authorities.

To listen to Alberto Gonzales and other administration supporters, you'd think the President can legally do anything he wants on the say so of his own lawyers. But the Constitution doesn't grant any authorities to the Attorney General or the Justice Department. It doesn't even mention them.

Article III vests the judicial power of the United States in "one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

It may seem condescending to point out that Alberto Gonzales and other administration attorneys work for the executive branch, and are not part of the judiciary. However, a college-educated acquaintance of mine who professes to be knowledgeable in political matters recently expressed the opinion that Attorney General Gonzales was Chief Justice of the D.C. Circuit Court of Appeals.

8. "In the exercise of his plenary power to use military force, the president’s decisions are for him alone and are unreviewable.”

This often quoted statement is from a memorandum written by John Yoo, an attorney who worked in the Justice Department during George W. Bush's first term. It implies that the Constitution grants the President absolute powers to conduct war, but in fact, the Constitution assigns most war powers to the legislature.

Article II makes the President commander in chief of the military. Specific war making powers are delineated in Article I, which grants Congress the powers…
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress[.]

9. The Constitution expands the President's authorities as commander in chief in wartime.

The Constitution makes the President commander in chief of the military, not of the country, in peacetime and wartime. It makes no provision for the President to assume any of the legislature's powers in time of war, and gives him no wartime authorities to ignore the rulings of the Supreme Court.

10. As Vice President, Dick Cheney is second-in-command of the military, and has authority to direct the Joint Chiefs of Staff in the conduct of the War on Terror.

Article I makes the Vice President the President of the Senate, but he cannot vote on any legislation unless the Senate is equally divided. The Vice President has no legal position in the military chain of command, and the Constitution doesn't allow the President to give him one.

The Goldwater-Nichols Department of Defense Reorganization Act of 1986 redefined the chain of command for U.S. military operations as passing from the President to the Secretary of Defense to the unified combat commanders like General John Abizaid of Central Command, whose area of responsibility includes the Iraq theater of operations.

Goldwater-Nichols relegated the Joint Chiefs of Staff to an advisory role. Hence, Chairman Peter Pace and service chiefs like Army General Peter J. Schoomaker have no actual command authority over the operations in Iraq, Afghanistan, and elsewhere.


Countless statements concerning war powers have appeared in legislation and court decisions since the U.S. Constitution was ratified in 1787. Lawyers, pundits, and politicians endlessly refer to these precedents when arguing for or against their point of view, but citing precedent is like taking a stroll through a cherry orchard. You can pick as much of whatever flavor suits your taste.

The Hamdi v. Rumsfeld decision in itself is a cornucopia of contradictory judgments. The majority opinion, written by Sandra Day O'Connor, decrees that…
The AUMF [the Authorization for Use of Military Force passed by Congress in 2001 shortly after the 9/11 attacks] authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF.

There is no bar to this Nation’s holding one of its own citizens as an enemy combatant.

But it also says that…
…a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.

And as we saw during Attorney General Gonzales' testimony to the Senate Judiciary Committee on Monday, both of these passages were quoted during the for-and-against debate over presidential wartime authority.

How is a concerned American citizen to sort the wheat from the chaff in the ongoing war powers controversy? At the end of the day, it's probably best to keep in mind that all U.S. law springs from the Constitution, and the best way to know what the Constitution says is to read it for yourself. Don't rely on someone else to tell you what it says, and certainly don't rely on anyone who's in the Bush administration or one of its supporters to tell you what it says.

Believe it or not, those folks have been known to make stuff up!


  1. Jeff:

    Excellent post. I agree with what you've said. The point about the Geneva Convention can become a bit thorny, however. While the Senate is required to enter into a treaty, the Constitution doesn't specify how a treaty is abandoned. Throughout history, the President has been able to do this unlaterally. This from the Senate web site:


    Treaty Termination

    The Constitution is silent about how treaties might be terminated. The breaking off of two treaties during the Jimmy Carter administration stirred controversy. In 1978, the president terminated the U.S. defense treaty with Taiwan, in order to facilitate the establishment of diplomatic relations with the People's Republic of China. Also in 1978, the new Panama Canal treaties replaced three previous treaties with Panama. In one case, the president acted unilaterally; in the second, he terminated treaties in accordance with actions taken by Congress. But clearly it seems that the right to terminate belongs to the executive, the sole branch of government that communicates with foreign governments. Only once has Congress terminated a treaty by a joint resolution; that was a mutual defense treaty with France, from which, in 1798, Congress declared the United States "freed and exonerated." In that case, breaking the treaty almost amounted to an act of war; indeed, two days later Congress authorized hostilities against France, which were only narrowly averted."

    It seems to me that a corollary of the "advice and consent" requirement to enter into a treaty should be the same "advice and consent" to repudiate one. But that doesn't appear to have been the case for the most part.

    So I suppose one might argue the President has the power to repudiate the Geneva Convention, at which point it is no longer "the supreme law of the land" because it is no longer a treaty to which the U.S. is a party.

    That said, of course, Bush has not come out and said he repudiates the treaty. An interesting question is this: if it is true that the President can repudiate the entire treaty on his own, then does he have the power to repudiate only portions of it? And if so, can he do so impliedly by refusing to extend its protections in certain circumstances?

    Again, my feeling on this is "no, he cannot," but I can see where the door may be open to certain arguments.

  2. Scott,

    Good points as usual, thanks for stopping by and posting.

    I think this one of those issues that can never be decisively concluded. The main thrust of my point is that they are defined as the law of the land in the constitution, and the argument they aren't is not valid.

    I think we both lean toward the view that the proper way to abbrogate a treaty is for Congress to do it. If any President can come along at any time and trash a treaty, who's going to want to make treaties with the US?

    I don't recall the details on Carter and Taiwan. I dimly recollect reading something to the effect he got away with it because he like Bush today, he had control of Congress, and nobody called him on it.

    I'm leery of accepting anything published on the GOP controlle Senate site: "clearly belongs to the executive..." looks like somebody in or very friendly to the administration wrote it, though I have no way of knowing how long it's been posted there.

    As to the Geneva and UN Torture Conventions, it's my opinion (today) that the admin didn't abrogate them, it claimed they didn't apply on the basis of it's own legal interpretations which I think are pretty shaky (let's agree to go around about that another day). That amounts to the basic issue we face--if the administration is free to do whatever its own lawyers say it can, there are no checks or balances on executive powers.

    But back to the basic jist--whether they apply in any given situation or however they get abrogated, ratified treaties are U.S. law, and I've heard a lot of talk in the echo chamber that would have you think they aren't.

    Thanks again for stopping by and bringing this up. If I get a chance, I'll go take a look at that page on the Senate site.