The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, 01-26

• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Citation: 25 Op. O.L.C. 188
• Decision Date: 25 September 2001
• Docket Number: 01-26
• Parties: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them

25 Op. O.L.C. 188

The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them

No. 01-26

United States Department of Justice

September 25, 2001

JOHN C. YOO Deputy Assistant Attorney General Office of Legal Counsel.

The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them

The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.

The President has constitutional 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.

The President may deploy military force preemptively against terrorist organizations or the states that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT^[*]

You have asked for our opinion as to the scope of the President's authority to take military action in response to the terrorist attacks on the United States on September 11, 2001. We conclude that the President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-1548 (the "WPR"), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional 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, the President may deploy military force preemptively against terrorist organizations or the states that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

Our analysis falls into four parts. First, we examine the Constitution's 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 the executive and judicial statements and decisions interpreting the Constitution and the [ 189] President's powers under it. Third, we analyze the relevant practice of the United States, including recent history, that supports the view that the President has the authority to deploy military force in response to emergency conditions such as those created by the September 11, 2001 terrorist attacks. Finally, we discuss congressional enactments that, in our view, acknowledge the President's plenary authority to use force to respond to the terrorist attack on the United States.

Our review establishes that all three branches of the federal government— Congress, the Executive, and the Judiciary—agree that the President has broad authority to use military force abroad, including the ability to deter future attacks.

I.

The President's constitutional power to defend the United States and the lives of its people must be understood in light of the Founders' express intention to create a federal government "cloathed with all the powers requisite to [the] complete execution of its trust." The Federalist No. 23, at 122 (Alexander Hamilton) (Charles R. Kesler ed., 1999). Foremost among the objectives committed to that trust by the Constitution is the security of the Nation.^[1] 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 efficiency." Id.^[2]

"It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981) [ 190] (citation omitted). 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." Lichter v. United States, 334 U.S. 742, 782 (1948). Nor is the authority to protect national security limited to actions necessary for "victories in the field." Application of Yamashita, 327 U.S. 1, 12 (1946). The authority over national security "carries with it the inherent power to guard against the immediate renewal of the conflict." Id.

We now turn to the more precise question of the President's inherent constitutional powers to use military force.

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." U.S. Const, art. II, § 2, cl. 1. He is further vested with all of "the executive Power" and the duty to execute the laws. U.S. Const, art. II, § 1. These powers give the President broad constitutional authority to use military force in response to threats to the national security and foreign policy of the United States.^[3] During the period leading up to the Constitution's ratification, the power to initiate hostilities and to control the escalation of conflict had been long understood to rest in the hands of the Executive Branch.^[4]

By their terms, these provisions vest full control of the military forces of the United States in the President. The power of the President is at its zenith under the Constitution when the President is directing military operations of the armed forces, because the power of Commander in Chief is assigned solely to the President. It has long been the view of this Office that the Commander-in-Chief Clause is a substantive grant of authority to the President and that the scope of the President's authority to commit the armed forces to combat is very broad. See, e.g., Memorandum for Charles W. Colson, Special Counsel to the President, from [ 191] William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The President and the War Power: South Vietnam and the Cambodian Sanctuaries (May 22, 1970) (the "Rehnquist Memo"). The President's complete discretion in exercising the Commander-in-Chief power has also been recognized by the courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court explained that, whether the President "in fulfilling his duties as Commander in-Chief had met with a situation justifying treating the southern States as belligerents and instituting a blockade, was a question "to be decided by him" and which the Court could not question, but must leave to "the political department of the Government to which this power was entrusted."^[5]

Some commentators have read the constitutional text differently. They argue that the vesting of the power to declare war gives Congress the sole authority to decide whether to make war.^[6] This view misreads the constitutional text and [ 192] misunderstands the nature of a declaration of war. Declaring war is not tantamount to making war—indeed, the Constitutional Convention specifically amended the working draft of the Constitution that had given Congress the power to make war. An earlier draft of the Constitution had given to Congress the power to "make" war. When it took up this clause on August 17, 1787, the Convention voted to change the clause from "make" to "declare." 2 The Records of the Federal Convention of 1787, at 318-19 (Max Farrand ed., rev. ed. 1966). A supporter of the change argued that it would "leav[e] to the Executive the power to repel sudden attacks." Id. at 318. Further, other elements of the Constitution describe "engaging" in war, which demonstrates that the Framers understood making and engaging in war to be broader than simply "declaring" war. See U.S. Const, art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."). A state constitution at the time of the ratification included provisions that prohibited the governor from "making" war without legislative approval, SC Const, art. XXVI (1776), reprinted in 6 The Federal and State Constitutions 3247 (Francis Newton Thorpe ed., 1909).^[7] If the Framers had wanted to require congressional consent before the initiation of military hostilities, they knew how to write such provisions.

Finally, the Framing generation well understood that declarations of war were obsolete. Not all forms of hostilities rose to the level of a declared war: during the seventeenth and eighteenth centuries, Great Britain and colonial America waged numerous conflicts against other states without an official declaration of war.^[8] As Alexander Hamilton observed during the ratification, "the ceremony of a formal denunciation of war has of late fallen...