The War Power

Abstract

This short paper attempts to set forth a comprehensive, but brief, overview of the Constitution's allocation of war powers and to apply those lessons to the most signal, controversial issues of recent and current war practice: control of the decision to go to war; control over war-execution in all respects, including capture, interrogation, detention, and military punishment of enemy combatants (lawful and unlawful); interception of communications with the enemy; judicial constitutional interpretations touching on (and interfering with) the Constitution's allocation of war powers. The Constitution's allocation of war powers is a classic application of the Framers’ reliance on separation of powers in the constitutional design. The Framers regarded the war power as too important to be vested in a single set of hands and so, by conscious design, divided it and allocated portions of that power to various branches, giving some powers exclusively to each branch and also providing for some areas of overlap - and thus shared authority - among them of powers. First, the Constitution vests, in the main, in Congress, and not in the President, the decision to initiate war - the authority to take the nation into a state of war. Second, the Constitution vests in the President, and not in Congress, the power to conduct war. Each of these powers is, in the main, autonomous of the powers of the other branch and thus to a substantial degree immune from control by the other’s powers. Third, the Constitution vest no substantive war powers in the judiciary. But questions of the Constitution’s allocation of war powers nonetheless can be judicial questions. This does not mean that everything that the courts will decide on such matters is right. Nor does it mean even that everything that the courts say should be followed by the other branches of government. (Another aspect of the separation of powers is that the Framers regarded the power to interpret law - the power of constitutional interpretation - as another power too important to vest exclusively in any one branch of government. It too - like the war power - is a divided, shared power.) The political branches thus rightfully may use the constitutional powers at their disposal to resist judicial encroachments on the Constitution’s assignments of war powers to them. The power to authorize war properly rests with Congress, but Congress has exercised that power to grant the President enormous discretion to wage war. The Authorization to Use Military Force (AUMF) of September 18, 2001 is the broadest declaration of war in our nation's history, lawfully delegating to the President sweeping authority to use force against a wide array of enemies. Coupled with statutes like the Military Commissions Act of 2006 (MCA), Congress has added practically all of the war powers within its control to the President, and even endorsed a surprisingly pro-presidentialist view of the Constitution's allocation of powers. The Commander in Chief Clause power of the President, correctly understood, vests the President with essentially plenary U.S. constitutional power with respect to the conuct of war. This is a fearful and formidable power, but one inherent in the nature of the power to conduct war and the decision of the Framers to vest the power of military command in a single individual. The President, and not Congress, decides when and where to attack, whom to attack, how hard to attack, what the strategic and tactical objectives are, and when to cease fighting. (Or not to fight at all: the executive and Commander in Chief powers of the President vest him with a nearly plenary power to declare peace, as an incident of his sole discretionary power over the conduct of war). The President, and not Congress, decides what to do with respect to issues of the capture, detention, interrogation, military punishment for law-of-war violations of enemy combatants. He decides what to do with regard to interception of enemy communications. He exercises the power to interpret and apply international law for purposes of executing the power to wage war. In starkest terms, the Commander in Chief Clause power means that the President, and not Congress, possesses the constitutional power to decide whether or not to kill, capture, hold, interrogate, grant or withhold the protections of international law to, or even torture, members of enemy armed forces (of either the lawful or unlawful varieties). Recent decisions of the Supreme Court have departed from the Constitution's allocation of war powers, in several respects. To the extent they do so, those decisions are not constitutionally binding on the other branches of the national government.

Keywords: war, law of war, war powers, constitutional law, constitutional interpretation, separation of powers