The President's Constitutional Authority to Conduct Military Operations against Terrorist Organizations and the Nations That Harbor or Support Them
Delahunty, Robert J., Yoo, John C., Harvard Journal of Law & Public Policy
The terrorist attacks on the United States on September 11, 2001 raised important questions concerning the President's authority to take military action in response. Although Congress acted promptly to pass legislation authorizing the President to take military action against the terrorists and those linked to them, (1) we shall argue the President has broad constitutional power, even without such legislation, to deploy military force to retaliate against those implicated in the September 11 attacks. Congress acknowledged this inherent executive power in its recent legislation, as it had earlier in the War Powers Resolution (the "WPR"). (2) Further, we shall argue, the President had the innate power not only to retaliate against any person, organization, or state suspected of involvement in terrorist attacks on the United States, but also against foreign states suspected of harboring or supporting such organizations. Finally, we shall contend that the President's constitutional authority to deploy military force against terrorists and the states that harbor or support them includes both the power to respond to past attacks and the power to act preemptively against future ones.
Our analysis falls into four parts. First, we examine the constitutional text and structure. We conclude that the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the nation in its foreign relations, to use military force abroad, especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States. Second, we confirm that conclusion by reviewing executive and judicial statements and decisions interpreting the President's constitutional powers. Third, we analyze the relevant historical precedent, which supports the argument for Presidential authority in these matters. Finally, we discuss congressional enactments that acknowledge the President's full authority to use force both to respond to the September 11 attacks on the United States and to deter future strikes of that nature.
I. CONSTITUTIONAL AUTHORITY
The President's constitutional power to defend the United States and its citizens must be understood in the context of the Founders' express intention to create a federal government "clothed with all the powers requisite to [the] complete execution of its trust." (3) Foremost among the objectives committed to that trust is the the nation's security. (4) As Hamilton explained in arguing for the Constitution's adoption, because:
the circumstances which may affect the public safety are [not] reducible within certain determinate limits, ... it must be admitted, as a necessary consequence that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficacy. (5)
"It is `obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." (6) Within the limits that the Constitution itself imposes, the scope and distribution of the powers to protect national security must be construed to authorize the most efficacious defense of the nation and its interests in accordance "with the realistic purposes of the entire instrument." (7) Nor is the authority to protect national security limited to actions necessary for "victories in the field." (8) The authority over national security "carries with it the inherent power to guard against the immediate renewal of the conflict." (9)
A. Constitutional Text
The text, structure, and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to use military force in situations of emergency. Article II, Section 2 states that the "President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States. …