PRESIDENTIAL WAR POWERS IN A NEVER-ENDING “WAR” Seth Weinberger ∗ I. INTRODUCTION ....................................................................... 1 II. THE MEANING OF “WAR” AND EXECUTIVE WAR POWERS ......................................................................... 4 III. THE AUMF AND THE MEANING OF A DECLARATION OF WAR ......................................................... 12 IV. CONCLUSIONS: WAR POWERS IN A NEVER- ENDING WAR ........................................................................ 17 I. INTRODUCTION On December 16, 2005, the New York Times ran an article revealing that the Bush Administration had, in the months immediately following the attacks of September 11, secretly authorized the National Security Agency (NSA) to monitor the international telephone and email communications of “hundreds, perhaps thousands, of people inside the United States without warrants in an effort to track possible ‘dirty numbers’ linked to al Qaeda.” 1 The resulting firestorm from the disclosure was extremely fierce as civil liberties activists, scholars and pundits from all political perspectives weighed in on the legality and constitutionality of the surveillance program. President Bush and members of his administration, including United States Attorney General Alberto Gonzales, quickly offered arguments supporting the operation. The main thrust of the administration’s defense—and the argument considered herein—of the NSA surveillance program is that “the Authorization for the Use of Military Force (AUMF) [passed by the United States Congress on September 18, 2001 in response to the September 11 attacks] places the President at the zenith of his powers in authorizing the NSA activities.” 2 In essence, the administration is arguing that by authorizing the President to use force against those who were involved in any way in the 9/11 attacks on the World Trade Center and the Pentagon, ∗ Assistant Professor, Department of Politics and Government, The University of Puget Sound, 1500 N. Warner, Tacoma, WA 98416. 1. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A1. 2. Legal Authorities Supporting the Activities of the National Security Agency Described By The President (Jan. 19, 2006), U.S. Department of Justice, available at http://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf (last visited Sept. 27, 2006). 2 ILSA Journal of International & Comparative Law [Vol. 13:1 Congress declared war against al Qaeda and other terrorist organizations, and by doing so gave the President power to “intercept international communications into and out of the United States of persons linked to al Qaeda or related terrorist organizations.” 3 The argument that the United States is currently at war with al Qaeda and other international terrorist groups and that, therefore, the AUMF passed on September 18, 2001 gave the President sufficient legal authority to conduct the NSA program has been repeated multiple times by members of the Bush Administration. According to this logic, since the United States is involved in a war, the President’s constitutionally-designated role as Commander-in-Chief of the armed forces provides the necessary constitutional authority. In the words of Attorney General Alberto R. Gonzales: The President’s authority to take military action—including the use of communications intelligence targeted at the enemy—does not come merely from his inherent constitutional powers. It comes directly from Congress as well. First, [Congress] expressly recognized the President’s authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States. Second, it supplemented that authority by authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons her determines planned, authorized, committed or aided the terrorist attacks” in order to prevent further attacks on the United States. The Resolution means that the President’s authority to use military force against those terrorist groups is at its maximum because he is acting with the express authorization of Congress. 4 President Bush has echoed this logic, arguing that “Congress gave the President additional authority to use the traditional tools—or ‘fundamental incidents’—of war in the fight against terror when Congress passed the authorization for the use of military force in 2001.” 5 This part of the administration’s defense of the NSA domestic surveillance program rests, therefore, on the argument that the country is at war in the formal and legal sense and that that war was declared by Congress, in accordance with 3. Id. at 1. 4. Prepared Remarks for Attorney General Alberto R. Gonzales at the Georgetown University Law Center (Jan. 24, 2006), U.S. Department of Justice, available at www.USDoj.gov/ag/speeches/2006/ag_speech_0601241.html (last visited Sept. 27, 2006). 5. Remarks by the President of the United States at the National Security Agency (Jan. 25, 2006), available at http://www.whitehouse.gov/news/releases/2006/01/20060125-1.html (last visited Sept. 27, 2006). 2006] Weinberger 3 congressional constitutional authority and responsibility, in the AUMF of September 18, 2001. The NSA operation has come under attack from many different approaches. In a letter written to various members of Congress a group of legal scholars attacked the legality and constitutionality of the surveillance program on several grounds, arguing that even if it could be reasonably concluded that Congress, by passing the AUMF, had “silently authorized” the NSA program, the explicit prohibition of domestic wiretapping in the Foreign Intelligence Surveillance Act (FISA) would override such a tacit understanding of the AUMF, especially when combined with the Fourth Amendment’s restriction on unwarranted searches. 6 The Congressional Research Service, in a memo entitled Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, concluded that it is difficult to conclude that the passage of FISA did not imply specific and explicit congressional intention to limit and control domestic surveillance operations. Furthermore, because Congress wrote into FISA a fifteen-day exception following a declaration of war in which the President could conduct warrantless domestic surveillance, “Congress seems clearly to have contemplated that FISA would continue to operate during war.” 7 However, all of these critiques, while certainly trenchant and possibly correct, fail to engage the more fundamental constitutional questions of war powers that are posed by the dispute. What are the powers contained within a formal “declaration of war” and how do those powers fit into the balance between congressional and executive war powers? How does the authority and scope of Presidential power depend on whether a formal declaration has been made? Is the AUMF passed by Congress in the wake of the September 11th attacks tantamount to a declaration of war? These are some of the questions that will be considered herein. Specifically, this paper will first examine the essential nature of a formally declared “war,” and will argue that the difference between “war” and “not war” is the degree to which the executive branch is given power by Congress to control the domestic arena with acts of an essentially legislative nature as a means of prosecuting a conflict. Thus, the President has wide latitude in the deployment of troops and the use of force, but, lacking explicit Congressional approval, is heavily restricted in the ability to 6. Why the NSA Surveillance Program is Unlawful (Jan. 9, 2006), available at http://uchicagolaw.typepad.com/faculty/2006/01/why_the_nsa_sur.html (last visited Sept. 27, 2006). 7. ELIZABETH B. BAZAN & JENNIFER K. ELSEA, CONGRESSIONAL RESEARCH SERVICE, PRESIDENTIAL AUTHORITY TO CONDUCT WARRANTLESS ELECTRONIC SURVEILLANCE TO GATHER FOREIGN INTELLIGENCE INFORMATION 43 (Jan. 5, 2006), available at http://www.fas.org/sgp/crs/intel/m010506.pdf (last visited Sept. 27, 2006). 4 ILSA Journal of International & Comparative Law [Vol. 13:1 mobilize or transform the home front, as when President Truman’s seizure of steel mills during the Korean War was rejected by the Supreme Court. Second, this paper will consider whether Senate Joint Resolution 23 (the AUMF of September 18, 2001) is a declaration of war, arguing that it is not and consequently the power of the President to affect the domestic sphere is limited. Therefore, authorizing the NSA domestic surveillance program, as well as attempts to replace civilian courts with military tribunals or indefinitely detain suspected terrorists without allowing for writs of habeas corpus, is beyond the scope of executive power in peacetime. Finally, this paper will conclude that in an undefined war with little prospects of ever being “won” in a traditional sense, extreme caution should be exercised when handing the legislative reins to the executive branch in pursuit of “victory.” II. THE MEANING OF “WAR” AND EXECUTIVE WAR POWERS The first question to be considered is whether the AUMF passed by Congress, on which the President is basing much of his authorization for the NSA program, is the legal and constitutional equivalent of a declaration of war, and what difference the distinction of whether the country is “at war” makes, especially in the powers of the President. This is an offshoot of the more fundamental question of Presidential war powers which is broached in the Constitution itself. So, before considering what is meant by the constitutional authority to declare war, we shall first examine how the war powers are delegated. The Constitution is actually quite specific in spelling out which branch has which power, though it fails to define exactly what certain powers entail. Article I, Section 8 gives Congress the power to declare war, but does not describe what a state of war is, nor whether there can be hostilities without a formal declaration of war. 8 Congress is also given the power to raise and support armies with appropriations for no longer than two years, to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces. 9 The Presidential war powers are summed up in Article II, Section 2, in the line, “The President shall be Commander-in-Chief of the Army and Navy of the United States,” a power also left undefined. 10 Thus, the delineation, at least at a very basic level, seems to be that Congress has the power to provide the President with military force that is to be commanded at the discretion of the executive. Declaring war is clearly and solely within congressional purview, but what is meant by declaring war is unexplained. 8. U.S. CONST. art. I, § 8. 9. Id. 10. U.S. CONST. art. II, § 2. 2006] Weinberger 5 One logical place to examine the intentions of the Founding Fathers is the Federalist Papers. The first paper concerning war powers is Federalist Paper 24, which assures that the fear of an unchecked executive figure, able to command an army at his will, is assuaged by the division of the war powers. 11 This is a clear response to the colonial fear of a standing army being controlled by a king, or other ruler, without popular control. By vesting solely in Congress the power to raise an army, and by limiting all appropriations to no more than a two year period, it is ensured that “no military establishment without evident necessity” can be maintained. 12 It is the decision of Congress, and Congress alone, whether an army should be raised and funded, and thereby exists at all. Thus, the President's control over the command of the forces is checked by the congressional power to cut off monies. Federalist Paper 26 further confirms the opinion that the primary congressional war power is the power of the purse. 13 Alexander Hamilton does recognize that Americans have a fear, and a well-justified one, of standing, peace-time armies, but responds that under the Constitution only the legislature, or in other words, the representatives of the people, will have the authority to raise an army, removing the threat of an imperial President using the troops to violate citizens’ liberties. 14 Furthermore, the obligation to reconsider the need for the army and vote on its funding every two years will prevent the armed forces from being abused. These two provisions guarantee that American liberty can not be subverted by the executive branch’s command of the army. The clearest indication of the constitutional intent for executive war powers can be found in Federalist 69, where Hamilton argues that the President's authority as Commander-in-Chief: [w]ould be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies . . . . 15 Nowhere is it, or could it be, stated more plainly or directly that the President is to have ultimate and unchallenged ability to command and employ United States Armed Forces, with the checks and balances being his 11. THE FEDERALIST NO. 24 (Alexander Hamilton). 12. Id. 13. THE FEDERALIST NO. 26 (Alexander Hamilton). 14. Id. 15. THE FEDERALIST NO. 69 (Alexander Hamilton) (emphasis added). 6 ILSA Journal of International & Comparative Law [Vol. 13:1 inability to raise, fund or regulate them. 16 Federalist Paper 74 reinforces this claim, asserting that it is essential in the conduct of hostilities for the command of the troops to be in one, single hand. 17 Not only do the Federalist Papers assert that the President has sole power to order and command American soldiers, and that the congressional war powers are centered around appropriation powers, but case law supports this view as well. Ex Parte Milligan states that Congress has not only the power to raise and support armies, but also to declare war, a power that “extends to all legislation essential to the prosecution of war with vigor and success, except such as interfere with the command of the forces and the conduct of campaigns. That power and duty belong to the President as Commander-in-Chief.” 18 Along these same lines, Swaim v. United States declares that while Congress may increase or reduce the military, or even abolish it altogether, “so long as we have a military force Congress can not take away from the President the supreme command.” 19 As neither of these cases have ever been overturned, the principle still holds that the President has ultimate control over the order and employment of American armed forces, and Congress may neither command troops nor conduct their campaigns. As to the constitutional emphasis on congressional appropriations power, Holtzman v. Schlesinger sets forth the principle that continued congressional appropriations, undoubtedly being used to prosecute hostilities (the Vietnam War, in the case in question), do constitute an implied authorization for the use of force. 20 Therefore, if Congress is opposed to the continuation of hostilities being conducted by the President, it would have the constitutional right to cut off funding to the troops, or to earmark that those funds could not be used in the specified conflict (a tactic which was ultimately used by Congress to end the United States military involvement in Vietnam). 21 Elaborating on this point, Spaulding v. Douglass Aircraft gives Congress broad authority to control the manner in which funds appropriated in a budget may be used. 22 Specifically, it allows Congress to not only designate the purpose of any given appropriation, but also to set terms and conditions under which the money may be spent. 23 Thus, it was within congressional authority to declare, for example, that funds delegated 16. Id. 17. THE FEDERALIST NO. 74 (Alexander Hamilton). 18. Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866). 19. Swaim v. United States, 28 Ct. Cl. 173 (1893). 20. Holtzman v. Schlesinger, 361 F.Supp. 553 (E.D.N.Y. 1973). 21. RICHARD F. GRIMMETT, CONGRESSIONAL RESEARCH SERVICE, CRS REPORT FOR CONGRESS, CONGRESSIONAL USE OF FUNDING CUTOFFS SINCE 1970 INVOLVING U.S. MILITARY FORCES AND OVERSEAS DEPLOYMENTS (Jan.10, 2001), available at http://www.fas.org/man/crs/RS20775.pdf (last visited Sept. 27, 2006). 22. Spaulding v. Douglas Aircraft Co., 60 F.Supp. 985 (S.D.C. 1945). 23. Id. at 988. 2006] Weinberger 7 to the army in 1973 could not be used to conduct hostilities in Vietnam, or when, in 1984, Congress forbade the President from using monies to pursue conflicts in Latin America. 24 These restrictions do not interfere with the role of the Commander-in-Chief to command the troops in the field, but rather are a direct outgrowth of the power to raise and support an army. The power of the purse is recognized to be wholly in the hands of Congress, and is a broad means for the legislative branch to exercise checks and balances on the executive branch, by making it impossible to use appropriated funds in a particular manner. However, Holtzman v. Schlesinger only addressed the issue of hostilities in progress at the time of the appropriation, and does not tell whether the President may use an already-funded army to initiate military operations without the express permission of Congress. In fact, the decision states that “appropriations bills do not necessarily indicate an open-ended approval of all military operations which may be conducted.” 25 The implication is that some other form of Congressional authorization may be required for the President to commit American soldiers into hostilities. Mitchell v. Laird firmly established that it is constitutionally acceptable for Congress to use other means than a formal declaration of war to authorize approval for the conduct of hostilities. 26 In the unanimous decision, the court stated that “any attempt to require a declaration of war as the only permissible form of assent might involve unforeseeable domestic and international consequences . . . .” 27 The decision also says that the manner in which Congress may or may not give its assent is largely a political one, and is to be determined by the other two branches. 28 Nevertheless, we have a firm decision that there are other acceptable means of congressional assent to the deployment of military force than a formal declaration of war. 29 Returning to Spaulding v. Douglas Aircraft, it is possible to determine one such means of “alternative” authorization. If it is within congressional rights to place rules and conditions on their appropriations packages, then what is the message when no such stipulations are made? Since Congress is aware, or should be aware, of its ability to place conditions on funds, if it does not choose to do so, then the money is free to be spent. Knowing full-well that the President often uses military force, Congress could place a restriction on the defense budget, by stating that appropriated funds do not give authorization to conduct operations in a particular area, if they desire to restrain the President from engaging in such 24. Id. at 985. 25. Holtzman v. Schlesinger, 361 F.Supp. 553 (E.D.N.Y. 1973). 26. Mitchell v. Laird, 488 F. 2d 611 (1973). 27. Id. at 615. 28. Id. 29. Id. 8 ILSA Journal of International & Comparative Law [Vol. 13:1 activities. It is within congressional authority to control how the United States military is funded and what it is funded for, but once it is funded, Congress has no control over how the troops are used. By placing no conditions on the funds, Congress tacitly assents to an “alternative” authorization of hostilities, permitted by Mitchell v. Laird. 30 Critics will argue this point, saying that specific Congressional authorization for the action in question is needed, and that such an indirect authorization is not valid or constitutional. 31 However, neither precedent nor case history support this view, with both establishing that specific congressional assent to military actions may not be needed. Durand v. Hollins states that as the only legitimate organ of foreign policy, it is the President's job to protect the lives and interests of American citizens both at home and abroad. 32 When the President is acting in this role, he is not required to obtain prior Congressional authorization to commit troops into hostilities. Furthermore, since the inception of the United States Army, only five states of war have been declared by Congress, while there have been well over 215 instances in which United States military forces have been sent into conflict, or potential conflict, to protect United States citizens or promote American interests. 33 Commenting on this very point in the debate over the United Nations (U.N.) Charter, Senator Arthur Vandenberg noted that: [i]f we were to require the consent of Congress to every use of our armed forces, it would not only violate the spirit of the Charter, but it would violate the spirit of the Constitution of the United States, because under the Constitution the President has certain rights to use our armed forces in the national defense without consulting Congress. [I]t is just as much a part of the Constitution as is the congressional right to declare war. 34 If Congress had thoroughly and completely objected to any of these instances of Presidentially-initiated hostilities, it could have passed a resolution against the action, cut off funding for the military, or even in the words of Swaim v. United States, “abolish it altogether.” 35 However, the normal congressional response has been silence. The existence and 30. Mitchell v. Laird, 488 F. 2d 611 (1973). 31. Karl Schonberg, Global Security and Legal Restraint: Reconsidering War Powers After September 11, 119 POLITICAL SCIENCE QUARTERLY 115 (2004). 32. Durand v. Hollins, 8 F.Cas. 111 (S.D.N.Y. 1860). 33. For a list of all uses of force by the United States, see RICHARD F. GRIMMETT, INSTANCES OF USE OF UNITED STATES ARMED FORCES ABROAD, 1798–2004, available at http://www.history.navy.mil/library/online/forces.htm (last visited November 18, 2006). 34. H.R. Rep. No. 1383, 79th Cong., 1st Sess. 7-8 (1945). 35. Swaim v. United States, 28 Ct. Cl. 173 (1893). 2006] Weinberger 9 continued funding of a permanent standing military force, in light of a clear precedent of Presidential usage of the force, constitutes tacit congressional authorization of the Presidential utilization of that force. Congress has never even tried to restrain a Presidential deployment of force using the War Powers Resolution, which was passed in 1973 as a response to the deployment of United States forces in Vietnam pursuant to the Gulf of Tonkin Resolution in lieu of a declaration of war. However: [e]very President from President Nixon forward has taken the position that the War Powers Resolution is an unconstitutional infringement on the authority of the President, as Commander-in-Chief, to utilize the Armed Forces of the United States to defend what he determines are the vital national security interests of the United States. 36 By taking no action in over 200 cases, Congress has essentially resolved the political question and created a gloss on the Constitution, which, in the words of Justice Frankfurter's concurrence in the “Steel Seizure” case, constitutes: a systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned, engaged in by Presidents who have sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on ‘executive power’ . . . . 37 By assenting time and time again to unilateral commencements and conduct of hostilities by the President, Congress has agreed that such actions are a recognized part of the executive power, which answers the political question raised in Mitchell v. Laird. 38 Congress, by continually appropriating the military budget with no restrictions or conditions, and by refusing to challenge the Presidential authority to unilaterally commence hostilities, Congress has granted the President the power to send American troops into combat without specific legislative authorization. But, congressional silence on an unconstitutional Presidential action does not make it legal. Is it within his delegated powers for the President to send troops into hostilities without seeking either a declaration of war or other specific congressional approval? Bas v. Tingy established the principle that there are levels of hostility below a declared war, referred to as “imperfect wars” by Justice Washington. 39 These low-intensity conflicts are restrained by domestic law, and the President has no special emergency 36. RICHARD F. GRIMMETT, supra note 21, at 3. 37. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579 (1952). 38. Mitchell v. Laird, 488 F. 2d 611 (1973). 39. Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800). 10 ILSA Journal of International & Comparative Law [Vol. 13:1 powers, the granting of which can only come from a Congressional declaration of war. The imperfect war, according to Justice Washington, is one in which an army has been raised and funded by Congress, and is limited in its nature. 40 Since Congress has raised and funded the United States Army, Air Force, Navy, and Marines, uses of the United States military power conducted without a formal declaration of war fits the category of imperfect war. Almost all uses of U.S. military force meet the criteria of imperfect, rather than perfect, wars. 41 Bas v. Tingy makes it clear that the President does have the right to use force without a declaration of war from Congress, but that in such conflicts, Presidential power to conduct those hostilities must be restrained. 42 When combined with the “alternative authorizations” described above, a picture of executive war powers emerges; one in which the President has wide latitude to deploy U.S. military force without explicit authorization from Congress, let alone a formal declaration of war. What good then is the congressional power to declare war? If the President can send troops into battle whenever and wherever he deems necessary, why would the President ever seek a declaration of war in the formal sense, and why is the power to declare war one of the war powers, along with power of the purse, explicitly given to Congress in the Constitution? The answer is in the distinction between perfect and imperfect wars as described in Bas v. Tingy, or in the difference between “war” and “not war.” Bas v. Tingy describes an imperfect war as a “limited, partial, war” in which “those who are authorized to commit hostilities, act under special authority, and can go no further than to the extent of their commission.” 43 A perfect war is defined as one in which “one whole nation is at war with another whole nation; and all the members of the nation declaring war, are authorized to commit hostilities against all the members of the other, in every place, and under every circumstance.” 44 These definitions are critical in understanding the importance of both the congressional power to declare war and the consequences of the distinction between “war” and “not war.” The vast majority of instances of the use of U.S. military might fall well short of a conventional understanding of war, or that given in Bas v. Tingy. A war, in the formal sense, is one in which the entire effort of the 40. Id. at 40. 41. It has not yet been discussed whether the Authorization to Use Military Force, upon which President Bush is basing his authority for the NSA domestic surveillance program, is tantamount to a formal declaration of war, which would make the War on Terror a “perfect” war. This question will be considered below. 42. Bas, 4 U.S. at 41. 43. Id. at 43. 44. Id. at 40. 2006] Weinberger 11 country is given to the prosecution of the conflict. 45 This definition is supported by the description of the legal consequences of a declaration of war given by Justice Nelson in his dissent in The Prize Cases. 46 Nelson’s description included: The citizens of the warring nations become enemies, the suspension of all legal contracts, a right of interdiction of trade and commerce into the enemy nation, the ability to capture and confiscate the property of the enemy, and the right to blockade ports. 47 Furthermore, Nelson wrote that “no power short of [a congressional declaration of war] can change the legal status of the Government or the relations of its citizens from that of peace to a state of war . . . . The war power of the Government must be exercised before this changed condition of the Government and people . . . can be admitted.” 48 The difference between war and not war, therefore, is about the ability of the President to act in a legislative manner in the domestic sphere (as well as in the international sphere), and is not primarily concerned with the use of force. A war in the formal sense, or a perfect war in the language of Bas v. Tingy, involves a level of hostilities that are much higher than in an imperfect war and requires the effort and focus of the entire country. A state of war, thus, affects both domestic and international law, and changes conditions and circumstances, as well as the scope of Presidential power, to allow for a more effective and complete national effort in prosecuting a war. Such conditions and circumstances involve acts of an inherently legislative nature that would normally require an act of Congress to authorize. For example, actions taken by Presidents during wartime include the suspension of habeas corpus, the rationing of food or material stocks, and the internment of American citizens of Japanese descent. When the country is not in a state of war by virtue of a declaration of war, the ability of the President to take such actions is restricted. The logic of this distinction is supported in Youngstown Sheet Tube Co. v. Sawyer, commonly referred to as the “Steel Seizure” case. 49 During the Korean War—which despite being called a war was not fought with a congressional declaration of war but rather a U.N. resolution—President Truman attempted to seize domestic steel mills in an effort to force striking steel workers back to their jobs, arguing that the steel mills produced 45. The Prize Cases, 67 U.S. (2 Black) 365 (1863). 46. Id.; Justice Nelson’s dissent was not related to the definition of war, but rather whether President Lincoln needed a declaration of war to blockade Confederate ports in the absence of such a declaration; the majority agreed that Lincoln did not need a declaration of war to do so. 47. Id. 48. The majority decision in The Prize Cases found that previous congressional legislation, including the Acts of Congress of February 28, 1795 and March 3, 1807, served as a declaration of war by expressly giving the President the power to use the U.S. military in case of invasion or insurrection. Thus, the logic of Justice Nelson in the cited quote is not contradicted. 49. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579 (1952). 12 ILSA Journal of International & Comparative Law [Vol. 13:1 material that was vital to the war effort. 50 The action was struck down as it was, according to Justice Black’s opinion, “lawmaking, a legislative function which the Constitution has expressly confided to Congress and not to the President . . . . 51 In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” 52 Furthermore: the order cannot properly be sustained as an exercise of the President’s military power as Commander-in-Chief of the Armed Forces. Even though the ‘theater of war’ is an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities. 53 When the President wants to take, pursuant to his powers as Commander-in-Chief, an action that is inherently legislative in nature, he must have explicit permission from Congress to do so—“from an act of Congress or from the Constitution itself.” 54 Since the Constitution does not give this kind of power to the President, it can only come from an act of Congress. A formal declaration of war meets such a definition. 55 This is the reason for the declaration itself, as well as the strength and relevance of congressional constitutional war powers. III. THE AUMF AND THE MEANING OF A DECLARATION OF WAR With regards to the NSA domestic surveillance program, the President’s claim is that the AUMF passed by Congress in the wake of the September 11 attacks was, in fact, a declaration of war. 56 Thus, the argument follows that Congress authorized the President to take domestic actions of a legislative nature, in this case approving the wiretapping of U.S. citizens. If Congress did declare war in a legal sense, then the President’s claim is, on these narrow grounds, valid. 57 So, the question becomes: is the 50. Id. 51. Id. 52. Id. 53. Id. 54. Youngstown Sheet, 343 U.S. 579. 55. The argument that Congress, when it passes a declaration of war, knowingly and deliberately gives the President power to take actions of a legislative nature will be presented in the following section. 56. See generally Remarks by the President of the United States at the National Security Agency, supra note 5. 57. There are many other arguments for and against the legality and constitutionality of the NSA program. Here we are only considering whether it is part of the President’s war powers. 2006] Weinberger 13 AUMF the functional equivalent of a declaration of war and did Congress intend to give legislative authority to the President? Not every use of American military force has been conducted under the aegis of a declaration of war. Far from it. Out of the more than 200 uses of force, war has only been declared by the U.S. Congress five times: the War of 1812; the Mexican-American War; the Spanish-American War; World War I; and World War II. 58 However, while no conflict involving U.S. soldiers has involved casualties like those in World War I or II (126,000 dead and 234,300 wounded, and 407,289 dead and 671,846 wounded, respectively), several have approached, if not surpassed, the world wars in terms of length (the Korean and Vietnam Wars, lasting three and nine [counting from the Gulf of Tonkin resolution until the withdrawal of U.S. troops] years, respectively). 59 Furthermore, while many of the more than 200 uses of force are fairly small-scale instances in terms of relevant measures such as intensity, scope, troops involved, and casualties, ranging from the use of U.S. air assets to strike at Libyan leader Moammar Qadaffi to the invasions of Panama and Grenada, several others have involved large troop deployments that strike most observers as “wars,” such as the first and second Persian Gulf wars. And yet, none of these conflicts was a war in the legal sense. 60 The key to understanding the necessity of a declaration of war is the scale and scope of the conflict. Under the framework developed in the previous section, the difference between a state of “war” and “not war” is the degree to which the President has been given power by Congress to act in a legislative manner in the domestic arena. Only in conflicts in which such powers would be necessary for the prosecution of the fight would a declaration of war be needed. Since the turn of the 20th century, only the two world wars have risen to such a level. This level is known as “total war,” a concept first developed by Prussian military strategist Carl von Clausewitz. “Total war” referred to war in the manner discussed in the previous section in which one entire state is in a state of war with another state, a war in which conflict was not just limited to the troops in the field, but also the industrial base and infrastructure as well as the political leadership of the combatants. 61 Such conflicts are not limited in any sense of the word; the entire nation is at risk and therefore contributes to the war effort. This mirrors the logic expressed in Bas v. 58. RICHARD F. GRIMMETT, CONGRESSIONAL RESEARCH SERVICE, INSTANCES OF USE OF UNITED STATES ARMED FORCES ABROAD, 1798-2004, NAVY DEP’T LIBRARY (2004), available at http://www.history.navy.mil/library/online/forces.htm (last visited Sept. 27, 2006). 59. Id. 60. Id. 61. See generally CARL VON CLAUSEWITZ, ON WAR, (Michael Howard & Peter Paret eds. & trans., 1976). See also PHILIP BOBBITT, THE SHIELD OF ACHILLES: WAR, PEACE, AND THE COURSE OF HISTORY 196 (2003); B.H. LIDDELL HART, STRATEGY 338–44 (1991). 14 ILSA Journal of International & Comparative Law [Vol. 13:1 Tingy, with the distinction between perfect and imperfect wars, the latter of which demands that the President’s power be constrained. It is inconceivable that the United States could have successfully prosecuted either World War I or II without massive contributions from the home front. Furthermore, the domestic populace of the United States has made few, if any, sacrifices in pursuit of other military conflicts, such as in Korea, Vietnam, Kosovo, Panama, Grenada, or Iraq. 62 Accordingly, World War I and II were both fought under declarations of war, allowing the Presidents at the time to act in the domestic arena by establishing rationing laws, seizing industry, and taking other actions as deemed necessary. But, can it be said that ceding such power was specifically intended by Congress? The declarations of war for World Wars I and II both contain particular language that provides clear indication that Congress did intend to cede legislative power to the President in recognition of the unlimited scope and scale of the conflicts. The language is found at the end of the declarations of war against Germany in both world wars and against Japan in World War II: “the President is hereby authorized and directed to employ the entire naval and military forces of the [United States] and the resources of the Government to carry on war against the [specified country]; and to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.” 63 Furthermore, the declarations all specify that “a state of war” between the United States and the enemy is “formally declared.” 64 This language makes it clear that Congress understands the implication of “war” as opposed to “not war” and that Congress recognizes in “war” the President will need more tools at his disposal than when using force in a less comprehensive manner. 65 62. This is not to minimize the loss of life incurred in any of these conflicts. However, as a nation, the United States contributed or sacrificed little during any of these wars in comparison to World War I or II. 63. Declarations of War, available at www.firstworldwar.com/source/usofficialawardeclaration.htm; www.law.ou.edu/hist/germwar.html; www.law.ou.edu/hist/japwar.html (note that the phrase “and the resources of the Government” is absent in the declaration against Germany in World War II) (last visited Sept. 27, 2006). 64. Id. 65. FAREED ZAKARIA, FROM WEALTH TO POWER: THE UNUSUAL ORIGINS OF AMERICA’S WORLD ROLE (1998) (since these three wars were not fought in the same way as the wars of the 20th century, the absence of the “resources of the country” language does not undo the argument); While the declarations of war for the War of 1812 and the Mexican- and Spanish-American Wars do formally declare the existence of a state of war, they do not contain the language about ceding all the resources of the country to the President. But this should not be surprising. The concept of “total” war did not really come into existence until the beginning of the 20th century, and World War I represents the first real “total” war. Furthermore, during the 19th century, the U.S. did not yet possess the domestic infrastructure or capability to mobilize much power from the home front. 2006] Weinberger 15 “All the resources of the country” means exactly that: when the country is in a state of war with an enemy, the President must be able to call upon the domestic arena with powers of a fundamentally legislative nature. Without a declaration of war, a President may not seize a domestic industry deemed crucial to the war effort, as President Truman tried to do; with such a declaration, a President can intern more than a hundred thousand American citizens, establish rationing, or divert industrial or transportation assets to the military cause. 66 The President can only call upon such powers when they are expressly and explicitly given to the President by Congress. So, did Congress intend to give such powers to President Bush with the passage of the AUMF on September 18, 2001? The AUMF contains none of the critical language that is found in the official declarations of war. It does not mention the establishment of a state of war to create a “perfect” or “total” war. It does not commit “all the resources of country” to the President to prosecute the conflict. Rather, the AUMF merely states that “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.” 67 This language cannot be interpreted to meet the criteria establishing a perfect war outlined in Bas v. Tingy, to create a state of war as described in the dissent from the Prize Cases, or to function as a declaration of war. In the absence of a declaration of war, the logic of Youngstown holds sway over Presidential power, restricting the ability of the President to act in a legislative nature in the domestic arena. Authorizing the NSA to conduct domestic wiretapping of U.S. citizens is such an action which would require congressional approval. If the President would not be allowed to seize property for the purposes of aiding the war effort in the absence of a declaration of war, it is hard to imagine that eavesdropping on U.S. citizens in violation of existing U.S. laws would be permitted in a similar circumstance. Furthermore, in Youngstown, Justice Jackson established, in his concurrence, three categories of “practical situations” that can be used to assess the legality of a Presidential action. 68 The first is when the “President acts pursuant to an express or implied authorization of Congress.” 69 In such a situation, “his authority is at its maximum, for it implies all that he 66. See JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 151 (2005). 67. S.J. RES. 23, 107th Cong. (2001) (enacted), available at www.yale.edu/lawweb/avalon/sept_11/sjres23_eb.htm (last visited Sept. 27, 2006). 68. Youngstown Sheet, 343 U.S. 634–56. 69. Id. at 635. 16 ILSA Journal of International & Comparative Law [Vol. 13:1 possesses in his own right plus all that Congress can delegate.” 70 In instances when “the President acts in absence of either a congressional grant or denial of authority,” there exists “a zone of twilight in which he and Congress may have concurrent authority, on in which its distribution is uncertain,” meaning that “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” 71 Finally, the third situation occurs when “the President takes measures incompatible with the expressed or implied will of Congress.” 72 In such cases, Presidential power is at “its lowest ebb” and “Presidential claim to a power . . . must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” 73 Neither the AUMF nor any other act of Congress expressly gave the President the authority to conduct warrantless wiretapping of U.S. citizens. And, since the AUMF is not a declaration of war it cannot be read as giving implied authorization either. Thus, the NSA surveillance program does not fall into Justice Jackson’s first category, where the legality of the program would “be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.” 74 But does the NSA program then fall into the second or third category? As has already been mentioned earlier, Congressional Research Service (CRS) published a study of the NSA surveillance program, in which it concluded that the passage of FISA by Congress firmly places the NSA program in the third category. CRS wrote that: [w]here Congress has passed a declaration of war, 50 U.S.C. § 1811 authorizes the Attorney General to conduct electronic surveillance without a court order for fifteen calendar days following a declaration of war by Congress. This provision does not appear to apply to the AUMF, as that does not constitute a congressional declaration of war. Indeed, even if the authorization were regarded as a declaration of war, the authority to conduct warrantless electronic surveillance under 50 U.S.C. § 1811 would only extend to a maximum of fifteen days following its passage. 75 Furthermore, “the history of Congress’s active involvement in regulating electronic surveillance within the United States leaves little room 70. Id. 71. Id. at 637. 72. Id. 73. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579 (1952). 74. Id. at 637. 75. BAZAN & ELSEA, supra note 7, at 26. 2006] Weinberger 17 for arguing that Congress has accepted by acquiescence the NSA operations here at issue.” 76 If, as argued here, the NSA program falls into the third category of Justice Jackson’s analysis, and if the AUMF did not constitute a declaration of war, then President Bush did not have the authority to authorize the National Security Agency to eavesdrop on U.S. citizens, regardless of its utility in pursuing and fighting terrorists. In the analysis herein, the President does have wide latitude to use military force in the absence of an explicit declaration of war; however that latitude does not extend to actions like authorizing a U.S. intelligence agency to spy on American citizens. IV. CONCLUSIONS: WAR POWERS IN A NEVER-ENDING WAR In his concurrence to Youngstown, Justice Jackson wrote that “the tendency is strong to emphasize transient results upon policies—such as wages or stabilization—and lose sight of enduring consequences upon the balanced structure of our Republic.” 77 Indeed, much of the administration’s defense has rested on the argument that the NSA program is an effective and necessary component of the War on Terror. In the Department of Justice memo, Legal Authorities Supporting the Activities of the National Security Agency Described by the President, the argument is made that: [t]he Government’s interest in engaging in the NSA activities is the most compelling interest possible—securing the Nation from foreign attack . . . . The Government’s overwhelming interest in detecting and thwarting further al Qaeda attacks is easily sufficient to make reasonable the intrusion into privacy involved in [the NSA surveillance program]. 78 Even if the threat from al Qaeda is in fact, as President Bush has often asserted, an existential threat to the United States, it does not necessarily follow that the President should be freed from congressional restraints to pursue whatever policies the executive may deem necessary to fight that threat. In a “normal” war like either of the two world wars, an end can be envisioned, metrics exist for assessing progress towards that end, and extraordinary legislative powers ceded to the President by Congress can one day be given up. However, the “War on Terror” is not such a war. The enemy is unclear, as are the desired goals. Is the aim of the “War on Terror” defeating all terrorism, reducing terrorism to a nuisance, or simply lowering the likelihood of another large-scale attack? How can it be known if the 76. Id. at 43. 77. Youngstown Sheet, 343 U.S. at 634. 78. Legal Authorities Supporting the Activities of the National Security Agency Described By The President, supra note 2, at 40. 18 ILSA Journal of International & Comparative Law [Vol. 13:1 U.S. is winning the war? Does an absence of attacks mean that the war is successful, or that the terrorists haven’t tried? At what point would victory, if victory is even possible, be declared, and any extraordinary legislative powers be given back to Congress by the President? In such a situation, the burden of caution must recommend against a broad interpretation of executive powers. In the absence of a clear and specific congressional authorization, the President must not claim powers that exceed his normal authority. In the words of Justice Jackson: [n]o doctrine that the Court could promulgate would seem more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture. 79 However, in light of the comprehensive war powers argument developed herein, the claim by the executive branch for the legitimacy of the NSA program is damaging in a previously unforeseen way. For years, Presidents have been making the case that they have the constitutional right to deploy force without a specific congressional authorization, and have refused to recognize congressional attempts to assert legislative authority, as with the War Powers Resolution. The argument here supports that position. But by claiming that the AUMF is the functional and intentional equivalent to a formal declaration of war, the administration has unwittingly undermined the executive branch’s case for wide latitude and deference in force deployment. If such an argument rests on a narrow interpretation of the congressional power to “declare war”—that that power refers to the creation of a “state” of war and not the deployment of troops—the argument that any congressional authorization of force meets the constitutional mandate must necessarily broaden congressional war powers. The President’s rush to find authorization in the AUMF suggests that other similar congressional legislation might also be tantamount to a declaration of war. Such an interpretation would therefore expand congressional power over the deployment of military force. In the wake of the NSA surveillance program, Congress may very well attempt to reassert itself. Fearing additional encroachments by the President, Congress may claim that, in line with the very arguments made by the President, any and all congressional authorizations for the use of military force should be seen as part of a declaration of war and thus subject to congressional authority. The decision by President Bush to task the National Security Agency to eavesdrop on the conversations of American citizens is an extremely contentious one, but one that was no doubt made in good faith. 79. Id. at 33. 2006] Weinberger 19 The President very likely believes, perhaps even accurately, that such a program is a vital tool in protecting the nation from another terror attack and a critical assert in fighting the war on terror. However, noble goals and successful policies are not the arbiters of a policy’s legality and constitutionality. The power to act in a legislative manner rests with Congress, and does so in order to preserve the delicate balance of powers and authority that defines American government. In the absence of a clear and pressing threat to the country that is identified by Congress as needing a state of war to be properly contested, the President must not and cannot claim broad domestic powers. The NSA domestic surveillance program is illegal and unconstitutional. In a war that will likely have no end in the immediate future and has no real metrics for victory, policy must flow from process. Extreme caution must be taken before handing this—or any President—unmonitored domestic powers.