The Power to Make War in an Age of Global Terror, by Philip Bobbitt

8/6/2019 The Power to Make War in an Age of Global Terror, by Philip Bobbitt

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One might think that there can be ew surprises in the constitutional law o theUnited States; ater all, there is an enormous literature on this subject with a well-

defned canon and we have in our Supreme Court the equivalent o LAcadmie

franaise to police errant opinion.

In the ollowing essay, however, I will discuss two claims that would surprise most

persons amiliar with the war powers debate. The frst o these, unveiled in a recent

article in theHarvard Law Review, aims to startle us with the discovery that, contrary to

the universal expectations o constitutional scholars, the president has no substantive

exclusive powers o tactical command in war and until relatively recently has rarely

exercised any; the second aims to remind us that, contrary to the apparently universal

expectation o the public, the ramers specifcally denied to both the executive and

legislative branches the enumerated power to make war which thereore alls into the

category o implied powerswith radical consequences or the war powers debate.

In discussing these claims, I will argue that some essential elements have been largely

missing rom the analysis o the presidents powers to prosecute a war on terror:

Argumentative clarity regarding the modes o constitutional argument that must be

deployed to resolve this debate

An appreciation o the dynamic relationship between changes in the strategic

context and the evolution o constitutional structures

A realistic constitutional doctrine that can sustain the United States as it conronts

the novel and threatening developments that have spawned this conict.

A uu cAs ssAy

he Power to Make War inan Age of lobal error

Philip Bobbitt The Power to Make War in an Age of Global Terror Hoover Institution Stanford Universit

b Philip Bobbitt for enr Monaghan

Koret-abe ak ore on ational serit and aw

www.futurechallengesessays.com


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Philip Bobbitt The Power to Make War in an Age of Global Terror 2 Hoover Institution Stanford Universit

Modal clarity is important because this debate is supremely constitutional in nature and

constitutional debate is legitimated by the use o constitutional modalities o argument;

yet, attention to the changes under way in the strategic environment has oten been

avoided precisely because it is eared that, as a practical matter, the consideration o

strategic imperatives would swallow up the constitutional grounds or decision. In act,

as I will argue, one cannot satisactorily engage either o these elements without the

other, nor crat a satisying and supple doctrinethe fnal missing elementwithout

engaging both o the others.

These surprising claims and missing essential elements make the war powers

controversy, at present, a debate that is unknown to itsel.

I.

During the period ollowing World War II, the chie constitutional dispute over war

powers in the United States concerned the presidents power to initiate the use o orce

in the absence o a congressional declaration o war. Beore the U.S. police action in

Korea, however, this was an almost unknown topic o scholarly and political attention.

Indeed, this was the case despite so many examples o executive intervention without a

declaration o war that one might conclude that there was a doctrinal rule during this

period that could roughly be expressed as ollows:

If Congress provides the wherewithal, the president may dispose of the forces andmateriel provided as he pleases including the initiation of conicteven in the

absence of a declaration of war or other explicit legal authorizationbut Congress

may change its mind and direct such dispositions as it chooses.

This doctrine has aspects that are both ad bellum (that is, under what conditions

can the president undertake a belligerency?) and in bello (that is, to what extent can

Congress determine the rules o conduct or the prosecution o war?) that evolved in

the frst seventy years o our constitutional lie. The doctrine has not developed, as it

might appear, in defance o the text, but rather with a nuanced and subtler reading

o that text guided by a greater appreciation o the intentions o the ramers and

ratifers than we are inclined to observe today. To put it in historical terms, this was the

doctrine o the American imperial state-nationa nineteenth-century constitutional

order that depended upon non-proessional armies and citizen militiasthat ought the

Native American wars, the French Naval War, and the Barbary interventions, as well

as declared wars in 1812 and 1846.


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This doctrine was considerably modifed by the events o the Civil War, which continued

the earlier constitutional practices with respect to initiating belligerent action ad

bellumPresident Lincoln did not go to Congress or an authorization to attack the

Conederacybut which considerably enlarged the exclusive authority o the president

to control the wagingo armed conict in bello. For example, Abraham Lincoln relied on

his power as commander in chie as the basis or the Emancipation Proclamation. In

terms o its constitutional order, the new doctrine laid the basis or the industrial

nation-state with its notions o total war, mass conscription, and standing armies.

The new doctrine might be roughly stated as ollows:

Providing the Congress has created the force structure, the president may dispose

of the armed forces as he pleaseseven in the absence of a declaration of war orother explicit legal authorizationand although Congress may by statute terminate

the conict, it cannot direct the disposition of armed forces contrary to the direction

of the president as commander in chief.

Despite this signifcant change in the doctrine, little controversy attached to the war

powers doctrine as a whole and it was repeatedly confrmed in the practices o the

Congress and the president and in various statements by the judiciary.

Although it is sometimes claimed that Congress departed rom the in bello, regulatory

elements o this doctrine in the run-up to World War II, I believe closer inspection casts

doubt on this claim. It is true that the isolationist Seventy-sixth Congress prohibited

the deployment o conscripted U.S. orces outside the Western hemisphere and that

President Franklin Delano Roosevelt complied with this, at some strategic peril, by using

Marines and regular Army elements to occupy Iceland prior to a declaration o war. But

the clarity o even this extraordinarily minor example is marred by FDRs various

subteruges with respect to the Neutrality Act as he adroitly moved the United States

toward war. Moreover, this tepid example stands in contrast to the great strategic

decisions taken by the president, none o which were the subject o congressional

action: the Europe First strategy, the timing o the second ront, the alliance with the

Soviet Union, and the use o the atomic bomb.

Ater Korea, however, this quietude abruptly ceased and a heated controversy over

the ad bellum, initiational elements o the doctrine commenced.

Congressional partisans pointed to the apparently unqualifed text o the declaration

o war clause and, i they were inclined to go urther, inerred rom the various Article I


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powers with respect to the creation, unding, and regulation o the armed orces, that

Congress was the sole custodian o the war power much the way that it is o the Article I

commerce power. The president is, on this view, the executor-in-chie.

Partisans o the executive, by contrast, pointed to the commander-in-chie clause

which is similarly textually unqualifed; to the requirement that the president aithully

execute the lawswhich include treaties which are, o course, not passed by Congress

but which oten commit the United States to armed assistanceand to a series o

precedents in which Congress has appeared to acquiesce in countless military

interventions initiated by the president.

Although the protagonists in this debate portrayed the disputes as historic, even

eternal, in act this debate was mainly a post-World War II aair. It is my view that thetiming and duration o the debate that began in the 1950s and continued up through

the 1990s has its origin in a particular strategic context: the Cold War, and in particular

the change in strategy brought about by the advent o nuclear weapons. This accounts

or the paucity o debate on war powers prior to 1949 and the avalanche o articles since

then. Further, I will suggest that as the strategic context changes, so the war powers

debate will change. It will shit to new grounds or dispute. I believe that this is as it

should be. Just as the law o contracts should shit with changing practices in the

market, so constitutional law must take into account the evolving strategic environment.

That doesnt mean that historical argumentthe eorts to enorce the intentions o the

ratifers o the constitutional provision to be construedis irrelevant because these

intentions were ormed in the strategic environment o the late eighteenth century. On

the contrary, historical argument, along with arguments rom text and structurethat is,

the modalities o strict constructionare perhaps the most important legitimating orms

o argument. In act, it is my view that commentators, heedless o the strategic context in

which the ramers ound themselves, have oten and perhaps unconsciously perverted

the original intention animating the constitutional provisions they construe by viewing

these, anachronistically, through the lens o the Cold War, Korea, and Vietnam. A modal1

way o expressing this act is to observe that historical argument is not doctrinalargument: that is, that the original intent o the ratifers does not shit with changing

strategic developments. For this very reason, we must be cautious when we use

historical arguments so that we really do try to capture the intentions o the ratifers

and not simply their practices. It seems clear, or example, that it is consistent with

the intentions o our ounders that the United States should have an air orce, even

though manned and armed ight was unknown as apractice to the ramers generation.


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II.

We must careully distinguish between the dierent modal orms o argument. Although

we teach these orms in our frst-year constitutional law classes, and although every

constitutional lawyer knows them as deeply as any Augustan poet knew his prosody, it

is nevertheless the case that the most elementary mistakes can be made by conusing

these archetypal orms or simply ignoring their signifcance.

Perhaps the frst mistake is to assume that in matters o lie or death to the State,

meticulous adherence to the orms o argument is an absurd luxury. The Constitution,

we are oten told, is not a suicide pact. But neither is it a shopping list. For one thing,

the public presentation o the great policies o the American state necessarily involve,

even when they are not wholly dependent upon, traditional modes o constitutional

interpretation . . .2 Moreover, even the most cursory review o our past exercises othe war power reveals that they are grounded in constitutional argumentation. Both

within the government and outside the government, the extent o the war powers o

the American state has been governed by conventional constitutional analysis. I, as

the ormer legal advisor to the National Security Council concluded, as a practical

matter that the majority o [war powers] disputes are ultimately settled (or let

unresolved) by the give and take between the political branches and by the non-

judicial precedent that such negotiated resolution establishes,3 this too is a matter

o a classic modal orm, specifcally doctrinal argument. Although we are trainedI

almost said deormedby constitutional law classes that ocus exclusively on the

case law o the judiciary as the generative agency o doctrine, in act the practices o

the president and the Congress also create constitutional doctrine.

The risqu observation that whatever the political process produces is what the

Constitution requires . . .4 disguises the act that the actions o our political process are

themselves structured and inormed by the Constitution and are incorporated into its

orms o argument. Worse, it suggests that either government can act unconstitutionally

so long as it confnes its actions to the non-justiciable or that, whatever the Constitution

provides, the branches o government can out its provisions so long as they are in

temporary accord.

So it is worth our while to pay attention to the rigors o these orms. They are not mere

niceties. Historical argument is quite distinct rom textual argumentthat is, argument

rom our contemporary understanding o the unvarnished words o the Constitution.

This is something partisans on both sides tend to blur. And both these orms or

modalities are quite dierent rom doctrinal argument. Just as judges must create


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doctrine to enable them to decide cases, so must the president and the Congress

crat precedents with the uture in mind. Finally, we will want to distinguish between

doctrinal argumentwhich can hugely shit as precedents are overruledand ethical

arguments, or arguments rom tradition, which emerge in much longer and more

consistent patterns that reect an embedded constitutional ethos. With these

distinctions in mind, let us return to the ad bellum debate o the post-war era and then

to the in bello questions raised by the war on terror.

III.

Although the war powers debate is closely associated with the controversy

surrounding the war in Vietnam and Southeast Asia, it really goes back to Korea and

North Asia when President Harry S. Truman ordered U.S. orces to lead a United

Nations coalition without seeking a declaration o war rom Congress. There wassome considerable objection to this in Congress at the time; I know Lyndon Johnson

thought President Truman had made a mistake. But Secretary o State Dean Acheson

took the position that action by the U.N. Security Council obviated the need or a

joint resolution rom Congress. Treaties are, ater all, the law o the land and the

president is constitutionally committed to enorcing the U.N. Charter, pursuant to

which the U.N. Security Council had acted.

Partisans o both sides o this debate had a hard time o it, though not necessarily or

the reasons pressed by their adversaries. For example, some in Congress elided the

distinction between textual argument and historical argument. This was captured by a

cartoon in The Washington Postthat frst appeared in the 1960s in which a parchment

scroll displays the words, Congress shall have the power to declare war beore two

rock-coated ramers, one o whom observes, Well, that should be clear enough.

But this move depends upon a kind o sleight o hand, taking the current meaning o

words (the mode o textual argument) and inerring an entirely erroneous original

meaning (the province o historical argument). As we know romBas v. Tingy, to say

nothing o The Federalist Papers, the original understanding o a declaration o war

had to do with perecting the war under international law, thus permitting the lawul

interdiction o neutral shipping, internment o civilians, etc. It was the arthestthing possible rom a condition precedent that must be satisfed beore war can be

constitutionally commenced, which is, I believe, the way the phrase declaration o

war is widely understood by the public today.

Not dissimilarly, though equally erroneously, advocates or the executive pointed to

early precedents like the French Naval War, the United States frst war, which was


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ought without the beneft o a declaration o war, mistakenly inerring that this war

had been prosecuted on the initiative o the executive acting alone when in act the

war was ought on the basis o a series o congressional appropriations statutes.

This is important not only or the doctrine that emerged; it is also indicative o the

intentions o the ratifers who peopled the Congress and the executive at the time.

These sorts o arguments dominated the debate up through the second Gul War

(another so-called undeclared war) and then the debate rather ended with a

whimperor, perhaps I should say, with a sigh. Although peace campaigners could

still speak angrily o unauthorized wars, now they meant that the U.N. Security

Council hadntauthorized action against Iraq, the very opposite o their objections

about the Korean intervention. And while members o the executive assertedas

had President George H. W. Bush with respect to the frst Gul Warthat the presidentdidnt really need congressional authorization, in that case because he had a U.N.

resolution, it was pretty obvious that George W. Bush could not take the country to

war in the absence o both a congressional authorization o military action and a U.N.

resolution, whatever bravado issued rom the White House Press Ofce.

Conerences are still held on this issuethe necessary conditions precedent or

intervention ad bellumbut that isnt where the action is. Thats because, like most

debates, the world moved on while the debaters continued and it eventually became

obvious that new problems loomed even i the old ones were not solved to the

satisaction o all parties. The rest o us became bored and distracted, and were then

agitated by new challenges, even as the conerences kept droning on. Today, among

scholars and public ofcials, there is something o a consensus that there are our

legitimate ways by which the United States can be taken to war: one is by declaration

o war or other joint resolution o Congress; another is by statute; another route is by

treaty or with the endorsement o an international organization established by a treaty

to which the United States is a party; and a fnal option occurs in the context o an

emergencyan imminent threat to American orces or nationals abroad, to our civil

order, or to the society as a whole.5

The war powers debate o the fties through the nineties had been an artiact o the

Cold War and particularly o the doctrine o nuclear deterrence and its twin pillar,

containment. It was absurd to think that nuclear deterrence could unction on the

basis o a declaration o war as a precondition to the initiation o hostilities. Thats

not because the president didnt have the authority to respond to a nuclear attack;

even the most ardent o the congressional partisans conceded that the president


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had the authority to retaliate in the ace o an attack, or the threat o an imminent

attack, on the American homeland. 6 It was more complex and ar more serious than

that. Rather it was because extended deterrence depended upon the presidents

ability to initiate nuclear strikes i our allies in Europe or Korea were overwhelmed

by a conventional attack. Indeed, the whole calculus o containment depended upon

executive authority, pursuant to which presidents had promulgated various strategic

doctrinesmassive retaliation, controlled response, assured destruction, essential

equivalencethat were analogous to judicial doctrines embodied in case law.

Truly awul nuclear scenarios animated many o those hostile to executive power. It

wasnt simply the president they distrustedany presidentit was the terrible

prospect o mutual annihilation and, too, o ofcious executive intervention abroad

that might always degenerate into a nuclear holocaust. These concerns sometimesinspired anxious eorts to remove such powers rom representative government

itsel. When Congress in act authorized intervention in Vietnam through the Gul o

Tonkin Resolutiona joint resolution signed into law by the presidentopponents

o the war simply ignored this and began to claim that a dierent joint resolution, a

declaration o war, was necessary. Some simply concocted the myth now widely

and shameully repeated that the acts o the Tonkin incident had been deceitully

arrangedor willully misconstruedby the executive, thus vitiating any subsequent

authorization by Congress.7

A contemporary descendant o this maneuver is the claim that President George W. Bush

lied to Congress about the presence o weapons o mass destruction (WMD) in Iraq,

thus erasing any constitutional authority otherwise conveyed by the joint resolution

endorsing the invasion o Iraq in 2003.

I the war powers debate o the late twentieth century was an artiact o the Cold War,

its successor in the twenty-frst century will be an artiact o the Wars on Terror. I the

ormer was necessary or doctrines o nuclear deterrence and containment to unction,

the latter must serve doctrines o preclusive warare, which includes armed intervention

abroad, aggressive intelligence collection, non-criminal detention abroad and at home,and a host o measures designed to address our ever-growing vulnerability to disruption

and de-territorialized attacks.

IV.

At least deterrence and containment were well understood, even i they had some

counter-intuitive aspects. Preclusive warare, however, is an emerging doctrine and its


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contours have yet to be thoroughly described. All we know or certain is that it will

depend as no doctrine has depended beore upon the rapid analysis o guesses about

the uture because the consequences o waiting or an undeterrable attack are atal to

the war aim o protecting civilians and maintaining a democratic state. As I observed

in The Shield of Achilles,

It is a clich that generals always prepare to fght the last war rather than the

next one. But i it is such a clich, why havent the generals heard itthat is,

why do we persist in modeling the uture on the past?

The past, it turns out, is all we know about the uture. Things are usually

pretty much the same as they have been. About modern warare we can say

three things based on the past: that it pits one country against another; that it

is waged by governments, not private parties; that the victorious partydeeatsor at least indefnitely detersits adversary.

Now it happens that we are living in one o those relatively rare periods in

which the uture is very much unlike the past. Indeed the three certainties I just

mentioned about the national securitythat it is national (not international),

that it is public (not private) and that it seeks victory (and not stalemate)

these three lessons o the past are all about to be turned upside down by the

new Age into which we are plunging.8

Thereore, the ground o the war powers debate will also shit, away rom disputes

over the ad bellum and toward the subjects o the in bello.

The novelty o our strategic context is sometimes expressed as a war on terror. I preer

to say that this is a period o wars on terror, which will include arenas o conict against

twenty-frstcentury, global, networked terrorists; eorts to prevent the prolieration o

WMD or the purposes o compellance rather than deterrence; and the prevention

and mitigation o civilian catastrophes. These are controversial ideas. Indeed, most

o my riends doubt that a war on terror even makes sense. But this, too, counts

against reviving the ad bellum debate. Ater all, i opponents o the wars on terror

dont even think we are at war, it will be hard or them to demand a declaration o thatstate o aairs.

As we move away rom a fxation on the commencement o hostilities, we will move

toward an obsession with the regulatory debate, that is, the extent to which Congress

can control the waging o war. In place o a ocus on the declaration o war clause,

attention will ocus on Article I writ large; and rather than the aithully executed


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provision, the president will rely as never beore on the commander-in-chie clause,

something he was loath to do when the war was o his own initiation.

Because preclusive war relies so heavily on the collection and analysis o intelligence,

the executives eorts to wage such a war will necessarily come up against the various

pre-existing statutory regulations that Congress has imposed on intelligence activities.

As two distinguished law proessorsthe authors o theHarvard Law Review piece

now serving in senior roles at the Ofce o Legal Counsel in the Department o Justice,

aptly noted,

Well beore the war on terrorism began, both intelligence collection and the treatment

o interrogation o detained persons have become subject to a thicket o statutory

regulation, through laws enacted to implement human rights treaties and the laws o warand to respond to the publics outrage at the abuse o national security powers exposed

in the atermath o Watergate. . . . [thus] Executive actions central to the current military

conict are in act subject to a substantial body o legislative and treaty-based regulation

. . . [or[ much o the primary action or engagement to the enemy is more likely to occur

in interrogation rooms and detention acilities, and across wires and in vast computer

reservoirs o stored data than in bunkers and on traditional battlefelds.9

So its not that there is a general executive trend toward sel-aggrandizementthe

physics o the imperial presidency so beloved o some criticsbut rather that a

change in warare is creating the conditions o constitutional conict between the

executive and the Congress and judiciary over the appropriate application o statutory

and treaty-based limitations that purportedly apply to a president attempting to wage

preclusive warare. Its not that constitutional struggles are attractive in and o

themselves; its that developments in warare now implicate statutory regulation

that did not originally contemplate these developments.

V.

In this upcoming debate, Congressional partisans will point to the mass o Article I

legislation governing intelligence collection and surveillancewe already have had aoretaste o this in the Foreign Intelligence Surveillance Act (FISA) reorm debateand

other areas, including torture and coercive interrogation, adherence to the laws o war

including the Uniorm Code o Military Justice, the Federal Criminal Torture statute,

War Crimes Act, the Geneva Conventions, the Convention against Torture, and laws

regulating critical inrastructure protection, as well as many other statutes. Presidents

o either party, by the waywill assert the power to use the armed orces in novel ways


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both domestically (as we have seen with the assignment o cyber-protection to the

Department o Deense) and abroad (e.g., where Americans are serving in Aghanistan

under NATO commanders). The executive will claim that the power to command the

armed orces preempts congressional action insoar as the latter is contrary to, or

incompatible with, executive action. The George W. Bush administration made something

o a etish o this claim, but it has an important role.

The opening shot in this new debate within the academy has already been fred by

David Barron and Marty Lederman in two extraordinarily impressive essays that appeared

in theHarvard Law Review.10 Barron and Lederman argue that, contrary to common

expectations, the commander in chie has only superintendence powers.11 That is,

the virtually universal assumption that Congress may not regulate the presidents

tactical oversight o wartime operationsan assumption that is so problematic with thebreakdown o spatial barriers in warare between zones o peace and zones o war,

between international and domestic theatersis ounded on an egregious oversight.

According to Barron and Lederman, there really is no problem, other than that imposed

by prudential arguments, because there are no exclusive powers conerred by the

commander-in-chie clause beyond the procedures enshrined in the chain o command.

This, they claim, was reected in our common governmental tradition until Korea. The

notion, supposedly deeply embedded in the Constitutional plan, that the Commander-

in-Chie Clause prevents the Congress rom interering with the Presidents operational

discretion in wartime by directing the conduct o campaigns is belied by a careul

review o the actual practices o the president and Congress rom the ounding up to

1950. Thus, despite its reafrmation in the 2006Hamdan v. Rumsfeldcase, the argument

or a substantive preclusive power must proceed, i at all, by deending a reversal o our

[historic practices].12

This line o attack might be phrased: despite what everyone up to now has assumed

to be the case, we have discovered that presidents and Congressesat least until the

War on Terror and quite possibly until Koreaacted as i this general understanding

did not bind them, and was not dispositive.

But i we careully attend to the modal distinctions between the orms o argument,

rather than lumping them all together in the portmanteau phrases historical practice

and constitutional tradition, we can better assess this conclusion.

Barron and Lederman want to expose the act that we have all, or a very long time,

been deceived into thinking there was a reserve power in the president or tactical


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command. They concede, however, that there is little evidence o the ratifers

intention to compel this conclusion. Their historical discoveries are not generally the

substance o historical arguments because they concern the behavior o a century

and a hal o presidents, ew o whom were ratifers o the original constitutional

charter.

Rather, they say that the historical practice, at least until the early 1950s, supports

their claim. This could be construed as the assertion o either an ethical argument

that is, an argument based upon our historic constitutional traditionsor a doctrinal

argument based upon the practices o the various branches o government as these

have developed over time.13

Barron and Lederman are happy to concede that or a very long time practicallyeveryone assumed that the president, by virtue o the Constitutions delegation o

authority to him as commander-in-chie, did enjoy some reserved powers o tactical

control over his orces. There is a venerable scholarly consensus, they write, that

Congress is constitutionally disabled rom using its Article I war powers to limit the

Presidents tactical options in war time. Expressing the conventional view, William

Howard Tat wrote in a 1916 article in the Yale Law Journalthat when we come to the

power o a President as Commander-in-Chie, it seems perectly clear that Congress

could not order battles to be ought on a certain plan and could not direct parts o

the army to be moved rom one part o the country to another.14 Indeed, they also

gleeully admit this has been a common judicial assumption since ater the Civil War,

when Chie Justice Salmon P. Chase stated that while Congress has an extensive

war-making authority; it may not enact legislation that intereres with the command

o the orces and the conduct o campaigns.15

They are not troubled by the many expressions o this conventional wisdom because

that is what allows them to bring about such a frisson in the reader when he comes upon

their conclusion that the view embraced by most contemporary war powers scholars

namely, that our constitutional tradition has long established that the Commander-in-

Chie enjoys some substantive powers that are preclusive o Congressional control withrespect to the command o orces and the conduct o campaignsis unwarranted. 16

This exciting scholarly claim relies on an exhaustive reconnaissance over the terrain o

governmental practices preceding the post-war period. Whatever we may have thought

they were doing, in actuality, we are told, the presidents o this period were remarkably

acquiescent on those rare occasions when Congress asserted its authority over tactical

control o the armed orces.


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Even acknowledging the difculty o determining when a president is acquiescing as a

matter o political tactics and when he is truly asserting a constitutional claim against

interest, Barron and Lederman have indeed made a valuable discovery. But is it a

constitutional argument?

Well, its not an ethical argument. Arguments rom the American constitutional ethos

arguments rom traditioncannot be established by a discovery. I we have commonly

held a view that is inconsistent with actualityi we have believed that Pluto was a

planet and it turns out only to be an asteroidthen that confrms that it was our

tradition to believe that Pluto was a planet. A traditionunlike the acts that it may

assertcannot be exposed as alse. A tradition is a widely shared assumption and i

that assumption is wrong, it has been no less widely shared or that discovery.

Nor can this argument be maintained in a doctrinal modality. I it is true that, until

relatively recently, our practicewhich is to say our doctrinal understandingwas

otherwise than it has recently been, this does not count against more recent doctrine.

Doctrine provides or its own overruling; modifcation is allowed.

Barron and Lederman pose this choice to the executive branch: presidents can build

upon a practice rooted in a undamental acceptance o a legitimacy o congressional

control over the conduct o campaigns that prevailed without substantial challenge

through World War II. Or they can cast their lot with the more recent view, espoused to

some extent by mostbut not allmodern Presidents, that the principle o exclusive

control over the conduct o war provides the baseline or which to begin thinking

about the Commander-in-Chie s proper place in the constitutional structure.17

To see how ambitious this argument is, imagine its authors had written: Courts can

build upon a practicesegregationrooted in the undamental acceptance o the

states role in ederalism that prevailed without substantial challenge into the late

1950s; or they can cast their lot with the more recent view that racial discrimination is

unconstitutional. But in act, we do not deny the doctrinal validity oBrown v. Board

of Education by saying thatPlessyv. Ferguson had a longer run.

Common understandings about the intentions o the ratifers can be overturned by

better research, more careul inerences, etc. But doctrinal argumentthat is, the

record o congressional and presidential practice that parallels the decision o cases

and controversies by courtsis dispositive precisely to the extent o the most

recent authoritative holdings. I Presidents Washington and Lincoln did in act act


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as Barron and Lederman assert, this is o ar less signifcance than how Congress and

the president acted in 1949 and thereater.18

Nor do Barron and Lederman take up prudential arguments and thereore they have no

occasion to address the issue o the extent to which doctrine should be sensitive to

the changes under way in the strategic environment.

Let me make two difdent suggestions: that we rame the question by looking at the

original intention o the ratifers and the important silences in their text; and that we

answer it by deploying prudential and structural arguments. These two steps will lead

us to a doctrinal resolution that is every bit as startling, I am araid, as Barron and

Ledermans discoveries.

VI.

I have long thought the most interesting aspect o the power to make war is that it is

constitutionally committed to neither branch. This is a less surprising claim i one is

merely asserting that the power to make war is divided between the legislative and

executive branches, but that is not what I mean. I mean that the enumerated power

to make war was careully and deliberately removed rom the text entirely. This was

done at the Constitutional Convention o 1787 when the delegates declined to accept

proposals to give the power to make war to either the executive or the legislative

branches. The delegates removed the language by which the war power had been

lodged in Congresswhere it had been under the Articles o Conederationand

replaced the text with the more limited power to declare war; they then rejected

proposals to give the power to make war to the executive, striking the entire

phrase rom the text. As Pierce Butler, who was an important participant in this

decision, explained it at the South Carolina ratiying convention,

It was at frst proposed to vest the sole power o making peace or war in

the Senate; but this was objected to as inimical to the genius o a republic,

by destroying the necessary balance they were anxious to preserve. Some

gentlemen were inclined to give this power to the President; but it wasobjected to, as throwing into his hands the inuence o a monarch, having

an opportunity o involving his country in a war whenever he wished to

promote her destruction. The House o Representatives was then named; but

an insurmountable objection was made to this propositionwhich was, that

negotiation always required the greatest secrecy, which could not be expected

in a large body.19


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Like other implied powers, the war powerlike the power to create a national bank

must be inerred rom more undamental powers. Because war is not an end in itsel,

it need not be an enumerated power; because it is a means, it can be inerred rom

allocation to the executivelike the responsibility to enorce treatiesor rom express

powers given to Congress, like the declaration o war clause. But such a means cannot

be inerred rom either the power to create an army and navy or the commander-in-chie

clause: we do not wage war so that the president can have something to do or the

Congress to und. By contrast, Congresss power to defne and punish . . . Oences

against the law o nations is sufcient to support such means as the Torture Act and

the War Crimes Act and to regulate targeted killing; Congresss commerce power is

sufcient to imply the means o regulating electronic interception and measures to

protect the inrastructure. Its enumerated power to make rules or the Government

and Regulation o the land and naval orces gives it plenary control over . . .procedures and remedies related to military discipline and thus the power to make

rules or coercive interrogations. All these measures are relevant to a war on terror.

Thus the history and text o the Constitution take us a long way toward raming the

issue. Now we must consider how our constitutional structure can best be deployed

to solve the insistent and perilous prudential problems o wars on terror. In doing so,

I begin with the legitimating unction o constitutional argument.

VII.

To fght the wars o the twentieth centurythe long struggle among ascism,

communism, and parliamentarianism or the soul o the nation-statewe studiedly

separated law and strategy.

The arch-Legal Realist Dean Acheson was every bit as committed to this separation

as was General George Marshall. On the one hand, we did not wish to militarize the

domestic environment; Marshall reused even to vote in elections and insisted that

his subordinates wear civilian clothes when they were not on duty. On the other hand,

we didnt wish to restrain warare through the imposition o laws. Were inclined to

orget that it was Francis Lieber who did as much as anyone to legitimate total war,a way o warare that goes back to Lincoln, Secretary o War Edwin Stanton, and

Generals Ulysses S. Grant and William T. Sherman, but was shocking to

contemporaries in the U.S. and Europe.

By means o the separation, we deeated deadly oes who had chosen to tightly

integrate strategy and law. Perhaps the most important aspect o the political struggle


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surrounding Youngstown Sheet & Tube Co. v. Sawyerwas not Justice Robert Jacksons

celebrated concurrence so much as Trumans message that he would abide by any

act passed by Congress that disclaimed the power to seize the steel mills (and also

that he would not veto such an act). He chose not to trump statutory action with his

commander-in-chie powers.

To fght the wars o the twenty-frst century, however, we shall have to reintegrate law

and strategy, or they are that sort o wars.

From those who are unconvinced that we are witnessing the emergence o a new

constitutional order, we can expect to hear charges that this integration smacks o

ascism or communism (depending on whos making the charge). But the ailure to

achieve this integration o law and strategy will deliver us deeats20

like Abu Ghraiband Guantanamowhen strategy neglected lawand fascos like the Wall21 and

the campaign or lawsuits against those telecommunication companies who gave

assistance to government surveillance ater 9/11 when our law had not kept pace

with the strategic challenges we ace.

So I conclude that while congressional partisans had the worst o it, constitutionally, in

the period just passeda declaration o war was notnecessary or the United States to

use armed orce, a treaty commitment wouldsufce, Congress could notdirect troops

to enter or leave any particular theater o battle, a pattern o appropriations was

sufcient to legitimate nuclear deterrence and riders to those appropriations insufcient

to exercise command unctionsdespite all this which cut in avor o executive initiative,

we are now entering a very dierent period.

In this new world, its the partisans o the executive who will be in or rough sledding.

There is no inherent prudential power, absent revolution or invasion that would preempt

Congress rom regulating U.S. orces at home or abroad so long as Congress acts within

its Article I authorities. And, as I have suggested, these authorities are precisely those

that will be relevant to prosecuting a war on terror.

This evolution is as it should be. We needed imaginative executive authority to win the

Cold War; we will need explicit congressional endorsements to win the wars against

terror. The war aim o the Long War rom 1914 to 1990 was to preserve the ideology o

an industrial democracy rom aggressive and heavily armed ideological opponents.

The war aim we conront in the twenty-frst century will be to protect civilians rom

avoidable or mitigable catastrophes; this demands that we act strategically through


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law, and the other way around, lest desperate civilians become the engine o damage

to themselves and their institutions.

The George W. Bush administration attempted to meet the menacing threats it aced

by circumventing the need or statutory authorization; no matter how tempting a route

this is, it must be avoided because the struggle we are embarked on is one to preserve

consent. Evading the consent o Congress is ultimately sel-deeating and, by the way,

even more enervating or Congress itsel.

By kicking the props o statutory and congressional authority away, the presidency

will only weaken itsel and undermine the legitimacy it requires to prosecute wars

against terror. It remains to be seen whether Congress is capable o being an

enlightened and oresightul partner. I it is not, the absence o legitimacy is bound toresult in the very losses our enemies wish to bring about, enhanced by the way, by

the creation by the courts, faute de mieux, o a legal ramework or such wars on the

basis o litigation.

We must recognize that we cannot complacently rely on law that is insensitive to

changes in the strategic context. To do so, as James Madison recognized inFederalist

PaperNo. 41, will breed contempt or the law and or constraints on government

generally. This gives even greater urgency to the need or Congressional action.

I am by no means sanguine about this prospect. Norman J. Ornstein and Thomas

E. Manns excellent book, The Broken Branch, aptly describes Congress and its current

degraded and eckless condition. Indeed, as Barron and Lederman observe,

The most glaring institutional act about the war on terror so ar is how little

Congress has participated in it. The President has resolved most o the novel

policy and institutional challenges terrorism poses with virtually no input or

oversight rom the legislative branch.

And yet we have a recent example o how Congress might successully unction asthe principal constitutional regulator o the wars on terror: that is the import o the

legislative action that resulted in FISA reorm.

The Foreign Intelligence Surveillance Act was enacted in 1978 as a reaction to

congressional investigations ollowing the Watergate aair. These revealed that the

National Security Agency (NSA) had collected millions o telegrams sent rom the


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United States, originally a program initiated by FDR at the outset o WW II without

any urther statutory authority.

FISA, which provides standards and procedures or electronic collection o oreign

intelligence, is to be distinguished rom the Electronic Communications Privacy Act

that governs traditional criminal investigations. FISA has been amended many times,

as our intelligence targets changed rom Soviet agents to terrorists and to so-called

lone wolves.

In December 2005 theNew York Times disclosed that, ollowing 9/11, the NSA had been

tasked by the White House with intercepting communications without frst seeking a

warrant, as provided by the statute, where one party to a conversation was outside

the United States. The ull extent o this program remains unknown, but it appears tohave been a version o data mining. Under FISA, NSA was required to demonstrate

probable cause that a target was a oreign agent or terrorist. NSA requests or basket

warrants within so-called umbrella surveillance were rejected. Included in such

surveillance would inevitably be conversations where one end was undetermined to

be oreign.

The statutory mechanism had not kept up with technologies that allowed, or example,

wholly oreign conversations to be routed through the United States, among other

anomalies. Some kind o reorm was urgently needed. The FISA Amendments Act (FAA)

o 2008 provides a salient example o bipartisan congressional action in a complex and

urgent context. As Proessor Paul Schwartz observes the new statute:

. . . expands the governments surveillance abilities, [while] it also adds

some new privacy protections. Its most important expansion o surveillance

authority is to allow government collection o inormation rom U.S.

telecommunications acilities where it is not possible to know in advance

whether a communication is purely international (where all parties are located

outside o the United States) or whether the communication involves a oreign

power or its agents. . . . The person targeted must not be a United States person.The critical substantive requirements are (1) the target o the surveillance is

located overseas, and (2) a signifcant purpose o the surveillance must be to

acquire oreign intelligence inormation. . . . The acquisition must also involve

new minimization procedures, which the attorney general is to adopt. . . . Until

this new enactment, FISA had not regulated surveillance o targets, whether U.S.

citizens or not, when they were located outside the United States. The FAA now


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requires that a [special court] approve surveillance o a U.S. citizen abroad

based on a fnding that the person is an agent o a oreign power, or an ofcer

or employee o a oreign power. The statute also contains a prohibition on

reverse targeting [which involves] the government using this link as a

pretext to gather intelligence about the domestic party to the communication.

. . . As a fnal privacy saeguard, the FAA also contains new mechanisms or

congressional oversight.22

This is a very impressive piece o legislation, passed during a presidential campaign in

which the members o Congress were subjected to the crassest kind o bullying by the

media, notably theNew York Times editorial page.

VIII.This history, even more than the recent congressional action on health care, suggests

that the branch may not be quite as dysunctional as it oten appears. Moreover i there

are prudential reasons why we want Congress to actto gain legitimacy or acts that

necessarily are taken on the basis o mere guesses about the uture based on intelligence

that will sometimes be wrongare there not also structural reasons why Congress is an

indispensable partner?

I suggest this structural argument:23

1. The commander-in-chie clause provides a hierarchical command with the

president at its apex.

2. As a co-equal branch o government, Congress cannot be under the presidents

command.

3. Thereore, the president cannot imply statutory authorities on the basis o the

commander-in-chie clause that empower the executive to do what he wants in

the absence o congressional authorization.

From these considerationshistorical, textual, ethical, structural, doctrinal, and

prudentialI propose this rule:

Statutory regulations adopted prior to the Authorization for the Use of Military

Force, adopted in 2001, bear the presumption that they have been modied by

that joint resolution. Congress, however, has the nal word on these matters and


20/24


explicit statutory action after an authorization for the use of military force will

govern executive conduct in the war on terror.

Thus, President Bush may well have been within his rights to go beyond the authorities

granted by FISA when he acted in 2001 and the telecommunication frms that relied

upon his representations that their cooperation was lawul were on reasonable ground.

By contrast, the current administration could not go beyond the authorities granted by

the FISA reorm statute in 2008.

It remains the case, as it has been since 1949 that, as the Ofce o Legal Counsel ound,

Congress may not enact statutes restricting troop levels in combat theaters, or defne

their mission, or determine the amount o military orce to be used in response to an

attack on U.S. orces, citizens, or territory. But this doctrine must be modifedperhapsin the way I have suggestedto cope with the looming threat o a conjunction among

global, networked terror groups, a market in weapons o mass destruction, and the

increasing vulnerability o civilians in ways that come within Congresss traditional

Article I powers.

A common law method has served us well in the past with respect to these questions,

even i we didnt always recognize it as such because it was being practiced by the

legislative and executive branches. It can serve us well again.

Conclusion

Barron and Lederman appreciate that one reason or the shit o ocus rom issues o

initiation to issues o regulation is the peculiar nature o the war on terrorism. Its

unusual entwinement with the home ront, its heavy ocus on preemptive action and

intelligence collection, and its targeting o a diuse, non-state enemy, all guarantee that

presidential uses o orce are likely to be conducted or years to come in a context that

is thick with statutory restrictions.24 My proposed doctrinal rule is an eort to cope

with this unusual entwinement.

The allocation o the commander-in-chies power to the president, to say nothing othe consensus doctrine that this power contains some substantive authorities that

Congress may not regulate, makes the resolution o this inter-branch conrontation

highly raught. It could even be the source o a crisis o de-legitimation. Or, it just

might lay the oundation or the mature acceptance o the complexities o preclusive

warare and thus arm us more eectively to protect ourselves and our institutions.

My aim in this paper is to oer an analysis o just how these apparently opposing


21/24


constitutional authorities might be satisactorily reconciled, and thus how this difcult

but crucial task might be accomplished.

I have assessed two surprising discoveries, rejected one and exalted the other. I have

done this on the basis o a strict adherence to, and reliance on, the modalities o

constitutional argument as these are applied in light o our changing strategic

environment (as indeed they always have been). I recognize that this only a beginning.

But it is the best place to begin.

Notes

1 he ix modalitie of ontittional argment are: hitorial (appling the intention of the ratier of the proviion to

be ontred); textal (appling the ontemporar ndertanding of the term of the proviion); trtral (inferring arle from the relationhip that obtain among ontittional trtre); dotrinal (appling rle derived from ae law

and preedent); prdential (deriving rle from a ot/benet anali of alternative); and ethial (impling rle from

the Amerian ontittional tradition).

2 David J. Barron and Martin s. ederman, he commander-in-chief at the owet bbraming the Problem,

Dotrine, and Original undertanding, 121 Harvard Law Review(2008) 689, 725.

3 Jame . Baker, In the Common Defense: National Security Law for Perilous Times (ew york: cambridge

univerit Pre, 2007).

4 Mark hnet, he Politial contittion of mergen Power: some eon from Hamdan, 91 Minnesota Law

Review(2007), 1451, 1468.

5 Philip Bobbitt, War Power: An a on John art l War and eponibilit, 92 Michigan Law Review

(1994), 1364, 139394.B the onlion of the clinton adminitration . . . it appeared that omething of a pratial

ettlement between the politial branhe regarding thi long-onteted ontittional qetion had been reahed.

B that time preident were in rogh agreement that, whatever the fonding-era ndertanding might have been,

extenive hitorial pratie had etablihed that the commander-in-chief wa, to ome not fll peied extent,

athorized to ommit Amerian fore in h a wa a to eriol rik hotilitie . . . withot prior ongreional

approval. see, Memorandm from William . ehnqit, Aitant Attorne eneral, Ofe of egal conel, to

charle W. colon, speial conel to the Preident 20 (Ma 22, 1970), 17; ee alo Propoed Deploment of

united state Armed ore into Bonia, 19 Op. Off. egal conel (1995), 327, 336; Deploment of united state

Armed ore into aiti, 18 Op. Off. egal conel (1994), 173; Preidential Power to ue Armed ore Abroad

Withot stattor Athorization, 4A Op. Off. egal conel (1980), 185, 18688.

6 he threat to retaliate againt h an attak maintained central deterrence.

7 hi depiable anard ha been too often repeated, in too man qarter, to reqire itation.

8 Philip Bobbitt, The Shield of Achilles: War, Peace and the Course of History, (ew york: Alfred A. Knopf, 2002),

815816.

9 Barron and ederman, he commander-in-chief at the owet bb, 714715.


22/24


10 Ibid., 689.

11 he Preident mt to ome oniderable extent retain ontrol over the vat reervoir of militar diretion that

exit in ever armed onit, even when bonded b important tattor limitation and th congre ma not aign

h ltimate deiion-making diretion to anone ele (inlding bordinate militar ofial) id. 696697. On

thi view, there i no btantive ommander-in-hief power that i exlive to the exetive.

12 Ibid., 696.

13 Barron and ederman alo offer what the term a trtral argment in pport of their onlion that the

preident reerved power are onned to the perintendene of the hain of ommand: the text of the

ommander-in-hief lae, the arge, i fairl read to intrt that no tatte old plae a general or other ofer

in harge of the athorized armed onit againt al-Qaeda, or the war in Iraq, and inlate that ofer from

preidential diretion or removal. Bt thi i not a trtral argment. he contittion doe not reate the fore

trtre per se, and trtral argment are baed on trtre reated b the contittion, not b congre;

ompare Barron and ederman, 769770.

14 25 Yale Law Journal(1916), 599, 610.

15 Ex parte Milligan, 71 us (4 Wall.) 2, 139 (1866) (chae, c.J. onrring in the jdgment); ee alo Hamdanv.

Rumsfeld, 126 s. ct. 2749, 2773 (2006) ([]either an the Preident, in war more than in peae, intrde pon

the proper athorit of congre, nor congre pon the proper athorit of the Preident . . . congre annot

diret the ondt of ampaign . . .); ee alo Powell, 67 George Washington Law Review(1999), 527, 56476;

and . Jefferon Powell, he Preident Athorit Over oreign Affair, 11326 (2002); see, e.g., William c. Bank

and Peter aven-anen, The Power of the Purse(ew york: Oxford univerit Pre usA, 1994); Mihael lennon,

Constitutional Diplomacy(Prineton, J: Prineton univerit Pre, 1990) 84; David M. olove, Againt ree-orm

ormalim, 73 New York University Law Review, (1998) 1791, 1855; Philip Bobbitt, ee note 5, 138992: althogh

congre ma forbid the e of fore in prit of a partilar poli at an time, it ma not at a a ommander

direting where troop will go or diret the fore it ha reated and the Preident ma at within hi contittional

athorit to end troop into hotile ation withot pei athorization even if congreional tatte prported to

interfere with hi ommand of thee fore. Bt ee that ne ontrarian enr P. Monaghan, he Protetive Powerof the Preiden, 93 Columbia Law Review(1993), 28.

16 Barron and ederman, 944.

17 Barron and ederman , 950.

18 Wahington, inoln, and both ooevelt, among othernever invoked the ort of prelive laim of

athorit that ome modern Preident appear to embrae withot pae. In fat, no chief xetive did o in an

lear wa ntil the onet of the Korean War. Barron and ederman, 948.

19 Bobbitt, ee note 5, 1381.

20 or thee were defeat in the war on terror jt a rel a defeat in battle orred in previo war.

21 he Wall wa a DOJ poli that prohibited the haring of information between proetor and intelligene

ofial. One egregio example of it impat wa the barring of BI invetigator from gaining ae to the

ompter of Zaaria Moaoi.

22 Pal M. shwartz, Warrantle Wiretapping, IsA eform, and the eon of Pbli ibert: A comment on

olme Jorde etre, uc Berkele center for aw and ehnolog (2009). etrieved from: http://eholarhip

.org//item/7w504g


23/24


copright 2010 b Philip Bobbitt.

hi pbliation i for edational and private, non-ommerial e onl. o part of thi pbliation ma be

reprinted, reproded, or tranmitted in eletroni, digital, mehanial, phototati, reording, or other mean

withot the written permiion of the opright holder. or permiion to reprint, reprode, or tranmit, ontat

M. in in Winiewki ([email protected]).

oover Intittion Pre ha no reponibilit for the peritene or ara of u for external or third-part

internet webite referred to in thi pbliation, and doe not garantee that an ontent on h webite i, or

will remain, arate or appropriate.

he preferred itation for thi pbliation i

Philip Bobbitt, he Power to Make War in an Age of lobal error (Ma 2010), in Future Challenges in National

Security and Law, edited b Peter Berkowitz, http://www.ftrehallengeea.om.

23 ot for the rt time, I have worked on an ea onl to diover that charle . Blak Jr. got there rt and

wrote it better. eognizing the rial role of the preident veto, Profeor Blak wrote, the btantive law of

preidential war power i ereted in the intertie of proedre that dramatiall alter the relative power of

the politial department, eetion on eahing and Working on contittional aw, 66 Oregon Law Review

(1987), 1, 12.

24 Barron and ederman, 945.


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Abot the Athor

Philip Bobbitt

Philip Bobbitt is the HerbertWechsler Professor of

Jurisprudence and director

of the Center for National

Security at Columbia Law

School and a member of

Hoover Institutions Koret-

Taube Task Force on National

Security and Law. He is

also a senior fellow at the

Robert Strauss Center for

International Security and

Law at the University of

Texas. He is the author of

seven books includingTerrorand Consent: The Wars for

the 21st Century, which was

published in 2008.

Koret-abe ak ore on ational seritand aw

The National Security and Law Task Force examines the rule o

law, the laws o war, and American constitutional law with a view

to making proposals that strike an optimal balance between

individual reedom and the vigorous deense o the nation

against terrorists both abroad and at home. The task orces

ocus is the rule o law and its role in Western civilization, as

well as the roles o international law and organizations, the laws

o war, and U.S. criminal law. Those goals will be accomplishedby systematically studying the constellation o issuessocial,

economic, and politicalon which striking a balance depends.

The core membership o this task orce includes Kenneth

Anderson, Peter Berkowitz (chair), Philip Bobbitt, Jack

Goldsmith, Stephen D. Krasner, Jessica Stern, Matthew

Waxman, Ruth Wedgwood, and Benjamin Wittes.

For more information about this Hoover Institution Task Force

please visit us online at http://www.hoover.org/taskforces/

national-security.

Documents

The Power to Make War in an Age of Global Terror, by Philip Bobbitt