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Advising the president: the growing scope of executive power to protect America.

C. Inherent Authority of the Executive Branch

Much of the debate over the exercise of executive power in the national security context arises in those circumstances where the President arguably has neither express constitutional nor express congressional authority. In these situations, presidents have relied upon an inherent or implied authority under the Constitution, emanating from their Commander in Chief power to protect and defend America. (127)

As the Supreme Court has recognized, the President is considered the "sole organ" of the United States in foreign affairs. (128) The Court held in United States v. Curtiss-Wright Export Corp. that the President is uniquely positioned to act decisively and quickly in the field of international relations and especially in times of war, given the delicate nature of intelligence and negotiations with foreign sovereigns. (129)

Although the Constitution says relatively little about the national security powers of the executive, I am unaware of any serious widespread disagreement that the President has some inherent authority. However, there is serious disagreement as to the scope of that authority. (130) Unfortunately, the courts have been inconsistent in the development and application of a framework to help resolve the question. (131) From my study of history, the default position throughout American history appears to be that the President has inherent power do what he needs to do to protect our country, subject to examination after the fact by Congress, the media, historians, and the American people. The President's inherent authority to take action appears to be even more widely accepted when such action is against non-citizens outside the boundaries of the United States. Given the growing magnitude of today's threats, I believe this default position will remain true as we move into the future.

One constitutional scholar has written that the scope of the President's inherent power can be traced along a spectrum. (132) At one end of the spectrum are advocates such as James Madison who argue there is no inherent power; presidential authority must come expressly from the Congress or the Constitution. (133) On the opposite end of the spectrum are others, such as Alexander Hamilton, who believe in the existence, even necessity, of broad inherent executive power, limited only by express constitutional prohibitions. (134) In my experience, the realities and practicalities of national security make both of these positions unworkable and potentially dangerous. The President's inherent power must exist somewhere between these two extremes.

One possible framework advocated to avoid these disputes would allow the President to act without an explicit congressional or constitutional grant of authority so long as he does not infringe upon the institutional prerogatives of another branch. (135) Alternatively, another possible framework is that the President may act so long as he is not expressly prohibited by the Constitution or Congress. (136) Under this framework, it is immaterial whether the authority of another branch of government is usurped. (137)

As between these two frameworks, the latter provides an insufficient check during those times when Congress is divided and nothing can be passed into law because of political wrangling. Consequently, the appropriate framework to judge the President's inherent power is one where the President may take action in the field of national security and foreign affairs so long as in doing so he does not usurp the prerogatives of another branch of government.

1. Bush Actions on September 11

For the purpose of illustrating the exercise of inherent power, it may be helpful to examine President Bush's actions immediately following the attacks on September 11, 2001. The 9/11 Commission (created after the fact by Congress as a congressional commission) reported that the President and other agencies under his control immediately took the following actions: military planes scrambled to find hijacked planes; all planes grounded at 9:25 AM (EST); decision to shoot down aircraft at 10:25 AM (EST); and Defense Department raised defense level to Def.-Con 3. (138)

In the following days, the President and his cabinet discussed measures to protect the country from further attacks and made plans for war against those responsible for the at tacks, including A1 Qaeda and the Taliban. (139) Military jets patrolled the air space over New York City and Washington, D.C. Additionally, the Department of Justice requested that the Immigration & Naturalization Service (INS) begin arresting individuals of "special interest" for immigration violations, and delaying their hearings or denying release bonds. (140)

The President, as the Commander in Chief of the armed forces, is authorized to act in defense of the country. No one can legitimately deny that the nation was under attack on September 11. As such, the President was authorized by the Constitution to take action. The 9/11 Commission found that there were already military protocols to follow in case of hijacked aircraft, including the scrambling of military planes to "intercept" the hijacked planes. (141) Further, raising the defense level to Def.-Con 3 occurred without the need for congressional approval, as it is for the President to decide the instrumentalities and operations of the armed forces. (142)

However, the decision to ground all commercial aircraft, as well as the shoot-down order of commercial aircraft judged to be hijacked and a threat, were unprecedented. The President can undoubtedly direct the military, but directing private aircraft with civilian passengers and possibly shooting them down is a different matter. Nevertheless, the Constitution granted the President the authority to do so in his role as Commander in Chief. Although it is not explicitly stated in the constitutional text, this authority lies in the penumbra of the responsibility placed upon him by the Constitution to control the operations of the military.

The President is tasked to protect the country. When an enemy turns an instrument of the private sector, such as a commercial aircraft, into an instrumentality of war, the President may take control of this sector as necessary to reduce the threat. Therefore, directing the grounding of all commercial aircraft is within the scope of his authority. After all, a significant segment of commercial aviation is already heavily regulated by the Federal Aviation Agency. (143)

Directing that the military may forcibly shoot down commercial airliners judged to be a threat to civilian lives on the ground also falls within the penumbra of the President's constitutional authority. This action is a judgment call that is best left to the President. As numerous cases support, (144) the knowledge of the executive branch places the President in the best position to make decisions that are time sensitive.

The executive branch has access to information that is not readily available to Congress, and Congress would not have been capable of convening quickly during a large national crisis. The President, with the consultation of his advisors, is in the best position to make such a decision in the time required, and it is within his authority to do so.

President Bush acted on his express and implied authority under the Constitution in the immediate aftermath of September 11. His actions were subsequently examined by the 9/11 Commission acting on behalf of Congress and the American people. Thus, our nation benefited from the flexibility available to the President to effectively respond to threats, subject to accountability to Congress for any abuses of power.

2. Executive Actions for Enemy Combatants

As discussed above, the 2001 AUMF is a recent example of statutory approval by Congress allowing expansive presidential authority during wartime. In the years since passage of the 2001 AUMF, there has been much debate over whether it authorized the executive to detain enemy combatants, engage in electronic surveillance of the enemy, and employ military commissions to try these combatants. Several U.S. Supreme Court decisions hint at the scope of authority of the Commander in Chief. Two of these cases are Hamdi v. Rumsfeld (145) and Hamdan v. Rumsfeld. (146)

In Hamdi, the court addressed whether the judiciary must defer to the executive's determination that a U.S. citizen is an enemy combatant. The Court stated that the judiciary does not have to defer to the executive's decision to designate an individual as an enemy combatant, but instead should act as a check against the executive in this situation. (147) The Supreme Court's decision in Hamdan concerned whether the Bush Administration could set up military commissions to try detainees at Guantanamo Bay without congressional authorization. The Court held 5-3 that the Administration was not authorized to set up the military commissions without congressional authorization because doing so would violate existing congressional statutes. (148) Thus the President would need congressional per mission in order to proceed. (149) Whether the Court would uphold presidential action over a conflicting congressional statute in a situation where the powers allotted to Congress are less defined remains unanswered.

In a time of emergency or when facing a threat, the President has a number of options in the presence of a conflicting congressional statute. First, he can choose to do nothing and suffer the consequences of such inaction. Second, he can go to Congress and try to get some type of congressional authorization resolution, or approval to act in spite of the conflicting statute. Finally, the President can rely on his own constitutional authority and be willing to suffer the legal and political consequences, including impeachment and losses by him and his political party in future elections. Since I believe the American people are better off when the elected branches of government work together in a time of war, I would like to see the President try to work with Congress for some type of approval or support. However, the realities of today's threats make it doubtful that congressional action would be forthcoming in a timely manner. If no help is forthcoming from Congress, I would hope the President would rely on his constitutional authority, doing what is necessary to protect our country and having the courage to be accountable for his decisions.


A. The Role of the Court

Chief Justice John Marshall famously declared in Marbury v. Madison that it is the role of the judiciary to interpret the Constitution. (150) Yet, in the area of national security, the courts have often appeared reluctant to define the power of the elected branches of government. For this reason, disagreements over the scope of executive branch power in the national security realm are most often decided in the political arena, not the courts.

As scholars have noted, the deference shown by our federal courts to the President's exercise of national security power in times of war and other threats is decidedly mixed. (151) The courts' deference appears to have been based on a number of factors, including the popularity of the President and Congress, the timing of the executive action, and whether the use of force was in connection with a conflict supported by the people. (152) In part, it is the courts' inconsistent treatment that has prevented the establishment of a coherent, consistent framework to analyze the question of presidential power.

While the authority of the executive branch to exercise power in the area of national security is dependent on the sources of authority discussed above, whether such sources even apply and are available will in certain cases depend on what the courts say. Historically, the courts have relied upon prudential and constitutional doctrines to avoid answering questions about executive branch power in the national security context. However, as the power of the modern executive grows and the potential for abuse increases, the courts may feel pressure to allow judicial review after the fact as a check against such abuses. This is particularly important in connection with the war on terrorism. Unfortunately, our fight against terrorism in the future is more likely to occur within U.S. borders and more directly impact the rights of American citizens. Because terrorists do not wear uniforms, the enemy may look like the average American citizen. The enemy may actually be an American citizen. Under such circumstances, there is a growing probability that government actors will mistakenly target innocent American citizens. If so, our courts are more likely to be motivated to step up and check executive branch power.

Though the judiciary has been reluctant in many instances to issue opinions that may define the executive and legislative roles more distinctly, Little v. Barreme (153) is a case that gives us some insight into the position the judiciary took when interpreting the scope of the war powers nearly two centuries ago. The case arose out of the "quasi-war" with France in the late 18th century. It concerned a presidential order to seize certain vessels sailing into or out of French ports. Captain Little, under the orders of President Adams, seized a vessel sailing from a French port. A congressional statute had been passed stating that vessels may only be seized when sailing to a French port, not from. In an opinion issued by Chief Justice Marshall, the Supreme Court held that the President was not authorized to issue this order in contravention of the congressional statute. (154) This case established an early threshold for congressional precedence in an area with minimal court precedent to look toward for guidance. Chief Justice Marshall expanded this threshold; Skibell argues he explained that "even in rapidly changing circumstances of naval engagement the will of Congress with respect to how the war was to be fought had to take precedence." (155) This decision indicates that Congress has the power, by passing legislation, to control aspects of how the Commander in Chief can conduct a war. (156)

1. Deference to Executive Power

Over the years, courts have grappled with how much deference congressional silence over executive branch actions and broad gaps within statutes give the executive branch. Justice Jackson's famous tripartite scheme of presidential power, articulated in Youngstown Sheet & Tube Co. v. Sawyer, postulates that the president is at his highest power when acting with congressional approval, in a twilight area when acting with congressional silence, and at his lowest when acting against the wishes of Congress. (157) Cases within the highest power are usually decided in favor of the executive, as the President's constitutional authority is supported statutorily. (158) However, even when dealing with the twilight area and lowest power of authority, the Court has still found favorably for the executive more often than not.

For instance, the Supreme Court in Dames & Moore v. Regan held that President Carter's executive order to nullify and transfer frozen Iranian assets, in response to the Iranian hostage crisis, was constitutionally permissible. (159) This power stemmed from the International Emergency Economic Powers Act (IEEPA) which gave "broad authority to the President to act in times of national emergency" and recognized an area of "loose discretion" in which the President had freedom to act. (160) Writing for the Court, Justice Rehnquist took note of Justice Jackson's concurrence in Youngstown and of the necessity of a "consideration of all the circumstances which might shed light on the views of the Legislative Branch toward such action, including 'congressional inertia, indifference or quiescence.'" (161) Further, the Court stated:

   Congress cannot anticipate and legislate with regard to every
   possible action the President may find it necessary to take or
   every possible situation in which he might act. Such failure of
   Congress specifically to delegate authority does not, "especially
   ... in the areas of foreign policy and national security," imply
   "congressional disapproval" of action taken by the Executive. (162)

No cases hold that congressional acquiescence applies to all future actions, but it can be persuasive to courts when deciphering a President's actions. (163) As Justice Frankfurter stated in Youngstown, "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned ... may be treated as a gloss on 'executive Power' vested in the President by [section] 1 of Art. II." (164) For past practice does not, by itself, create power, but "long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent." (165)

Some may question whether the courts even have the necessary expertise to judge the president's national security actions. One scholar argues:

   Courts and commentators have emphasized the lack of judicial
   competence in evaluating questions about the conduct
   of war. As compared to courts, the executive branch has
   more experience and better access to information about war.
   It also needs to act at times with dispatch, secrecy, and "unity
   of plan," all of which may counsel against interference by
   the courts. (166)

From this observation, it may be best for the courts to defer to the executive before action is taken. As to the question of whether or not the courts have the expertise to deal with technical national security issues after the fact, I believe this is less of a problem. Courts routinely decide cases about which judges and juries know very little, such as medical malpractice and environmental laws. Some national security experts support the establishment of a specialized national security court. (167) I do not believe that is necessary. If a case that meets the justiciability requirements is filed with the courts, I have confidence that judges will be able to decide it properly, provided measures are in place to protect classified information and confidential sources.

2. Justiciability Issues

Perhaps more significant than the opinions that the Court has rendered are the cases that have not been granted certiorari. Most notably, the Court has used standing to avoid hearing cases about NSA surveillance and the targeted killing of U.S. citizen Anwar al-Aulaqi. (168) The Court has also used the state secrets privilege to avoid hearing cases about extraordinary rendition, effectively denying claims by non-citizens against the government for the role it played. (169) The courts have shied away from reviewing presidential actions overseas unless there are judicially discoverable and manageable standards of review; otherwise, the question is barred by the political question doctrine. (170) I agree with the courts' reluctance to become involved with general foreign policy issues, as well as events occurring overseas. However, as a general rule in the national security context, courts should strive to review executive branch acts affecting domestic policy or involving the rights of American citizens. The following cases highlight how these doctrines have been employed with respect to national security issues.

a. Standing

In United States v. Richardson, a taxpayer filed suit against the government alleging that the Central Intelligence Agency's accounting procedures were unconstitutional. (171) The Supreme Court did not address the merits of the case, as it found the taxpayer lacked standing because he had neither sustained, nor was in imminent danger of sustaining, a direct injury from these procedures. (172) The Court sympathetically opined on behalf of the respondent, stating:

   It can be argued that if respondent is not permitted to litigate
   this issue, no one can do so.... [But] lack of standing
   ... does not impair the right to assert his views in the
   political forum or at the polls. Slow, cumbersome, and unresponsive
   though the traditional electoral process may be
   thought at times, our system provides for changing members
   of the political branches when dissatisfied citizens convince
   a sufficient number of their fellow electors that elected
   representatives are delinquent in performing duties committed
   to them. (173)

The difficulty in satisfying the standing requirements in the national security domain was vividly demonstrated in the case of Al-Aulaqi v. Obama. (174) There, the father of Al-Aulaqi, an American citizen, challenged President Obama's decision to place his son on the kill list. (175) The suit was dismissed for lack of jurisdiction. (176) Al-Aulaqi was later killed by a CIA drone strike in 2011.177

b. Political Question Doctrine

The political question doctrine refers to subject matters that the court deems to be inappropriate for judicial review. (178) In other words, courts have said that constitutional interpretation in certain areas should be left to the politically accountable branches of government. This is, in part, due to the courts' need for "judicially discoverable and manageable" standards from which to judge a President's actions. (179) In the realm of national security, such standards are difficult to find and often non-existent. (180) The Court has recognized that this exception must be applied narrowly or it could possibly encompass every action of the President, since most involve issues of foreign policy, calling it "error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance." (181)

This is illustrated in Orlando v. Laird, where certain enlistees in the Army sought to enjoin military commanders from enforcing deployment orders. (182) The enlistees argued that since Congress had not declared war with Vietnam, the commanders lacked authority to deploy troops. (183) The Court decided for the government since Congress had taken affirmative action to fund the military action and "[t]he constitutional delegation of the war-declaring power of Congress contains a discoverable and manageable standard ... The test is whether there is any action by the Congress sufficient to authorize or ratify the military activity in question." (184) However, the Court also held "the form which congressional authorization should take is one of policy ... because there are no intelligible and objectively manageable standards by which to judge such actions" and is thus a political question. (185) In sum, the question of whether Congress had the authority to "make war" was not a political question, but the question of how Congress chose to "make war" was barred.

In my judgment, the courts should be more involved in reviewing the actions of the executive in the field of national security, particularly when the rights of American citizens are involved while still maintaining the security measures necessary to secure the safety of the United States. In a dangerous world where the American people demand that the President protect them, no President is likely to give up power to meet these threats. Therefore, executive power will likely continue to grow unchecked at the expense of congressional power in the national security context. The political question doctrine is based in part on the notion that the political branches will act to protect their own institutional prerogatives. But what if that is not true and Congress is paralyzed and unable to work out a compromise with the executive branch? Today, Congress appears to be virtually powerless, or at least unwilling, to enforce any checks on the executive. (186) I am less concerned with the courts taking a more active role in enforcing separation of powers if they are engaged in providing an ex-post check as opposed to an ex-ante check. The ex-post check would allow the President to act quickly and discreetly if necessary to protect the United States. However, the President could still be held accountable in the courts for any abuses.

B. The Role of the Legislature

Earlier we discussed various laws passed by Congress to expand or limit presidential authority. In the field of national security, four additional legislative "checks of power" are routinely offered: the power of the purse, the power to block appointments, the power to impeach, and the power to sue the President. (187) While any or all of these powers may affect presidential decision-making to a degree, in my judgment, these checks alone remain largely ineffective to reign in the power of the President.

First, the congressional power to control the purse is explicitly derived from the Constitution. Article I vests Congress with the power to "lay and collect taxes ... [and] borrow money" (188) and bars the use of funds for uses other than as appropriated by Congress. (189) Further, Congress is vested to "raise and support armies." (190) Thus, if the President wishes to wage military action successfully, he must ask Congress to appropriate federal funds to support his military efforts.

The power of the purse is often touted as a powerful check, but in reality it has limited utility because the executive branch often has the power to fund military actions by moving funds within the executive branch without specific appropriation from Congress. (191) Moreover, often the President has already committed troops prior to congressional authorization. (192) Congress subsequently appropriates money to fund the troops, but this is not the same as funding the President's decision for military action. While some courts have insisted that supporting an appropriations bill is not an assent to war, (193) many other courts have deduced that congressional appropriation bills in conjunction with executive action gives rise to acceptance of military action. (194)

Secondly, the power to block appointments, specifically key leadership positions at the State Department, Department of Defense, CIA, and NSA, is often cited as an important check on executive abuses. However, even if the Senate can successfully block an appointment, there is a line of succession created by statute for every government agency. (195) Whenever a vacancy arises, an "acting" officer will hold the position and discharge duties until filled. This allows the agency to pursue the President's agenda despite the absence of a confirmed nominee.

Members of Congress have attempted repeatedly to sue the President for failing to faithfully execute the laws. In all cases, these efforts have failed for lack of standing. (196) Most recently, branches of Congress have passed resolutions to confer standing on members. (197) It remains to be seen whether these resolutions will be sufficient to confer standing.

Finally, the ultimate congressional check on presidential power is impeachment. (198) This process allows Congress to institute proceedings to oust the President from office for impeachable offenses. Throughout our history, there have been numerous cries from both parties to impeach the President when their party does not hold the White House. (199) Yet, the impeachment process almost never moves forward beyond the political posturing. In fact, only two presidents have been formally impeached, and the impeachment process does not automatically result in a forfeiture of office. (200) Moreover, trying to rally the number of votes needed for impeachment is difficult for fear that impeachment will become commonplace when an opposing party of the White House holds the majority in Congress. (201) Impeachment should not be used to force compliance or alter behavior; it should be reserved for criminal charges and severe abuses of power, not mere disagreement concerning debated constitutional issues.


When reflecting on the proper framework today for executive branch authority in the area of national security, I am influenced in part by what I see as an evolving standard of self-defense. Historically, under the Caroline case, force can be used in self-defense in response to an attack or in anticipation of an imminent threat. (202) Of course, since the formulation of the doctrine of self-defense, the gravity of the threats has grown significantly. During the Bush Administration, lawyers debated a subtle but important shift in the factors argued to use to self-defense. Given the grave harm from a successful nuclear, biological or chemical attack, we concluded it would be unnecessary to wait for a gun to be cocked and pointed at our heads before taking preventative action. (203) If we have knowledge of a serious and legitimate threat, and if the enemy has already demonstrated an intent and capability to hurt American interests, then given the gravity of the potential harm, the United States is legally entitled to use force in self-defense. (204) Having the wisdom and judgment to make the right decision in such situations is not enough. The decision-maker must be able to do so quickly. For these reasons, I continue to believe that the President remains in the best position to make national security decisions, particularly those involving self-defense. Any effective framework must recognize this new reality.

What are the objectives of a workable framework? The executive needs flexibility to respond quickly and effectively to national security threats. I refer to it as a presumption of legality or validity based on necessity. It is not identical to the presumption of validity in the context of patents, nor is it a conclusive presumption or rule of evidence; it is a permissive presumption. This presumption would be limited to the national security context and exist only with respect to decisions by the President, but would not apply when government action affects the rights of American citizens. This presumption is an acknowledgement that the President is best able, because of expertise, experience, and intelligence capabilities, to initially assess and respond to a national security threat. Finally, this presumption of validity already exists in practice and is supported by precedent.

On the other hand, the flexibility afforded by the presumption of validity must be balanced by accountability. Congress should be more disciplined and not give the President broad delegations of authority in every case. Authorizations to act should be limited, perhaps even subject to sunset. The executive branch should strive to make Congress more of a partner by sharing with congressional leaders contingency plans for various scenarios well before they occur. In this way, the executive branch will be able to take advantage of the collective wisdom of Congress. Congress must engage in greater oversight and demand greater visibility into what the executive is doing in the national security context. Not surprisingly, most presidents would prefer not to have to work with Congress in many cases because of possible security leaks, costly delays, and congressional opposition to the course of action the President believes is necessary. However, it is not the job of Congress to help the President feel comfortable. It is its job to ensure our rights are protected against executive branch abuse.

Additionally, because Congress is often paralyzed by politics, in appropriate cases where our national security is not compromised, it is my hope that it will become more common and more acceptable for courts to allow Congress and the public to test the validity of the presumption in favor of the President. The courts should carefully evaluate the application of justiciability, standing doctrine, and the political question doctrine in cases involving executive power in the national security context--particularly when the rights of American citizens are at issue. If plaintiffs are denied access to the courts, there may be no real check when there is a divided Congress. As discussed above, even with a unified Congress, the normal checks of blocking appointments, controlling the budget, and threatening impeachment are of limited utility.

We turn now to three actual national security scenarios.

A. Syria's Red Line

On September 10, 2013, President Obama delivered a speech to the nation on the use of chemical weapons by the regime of Syrian President Bashar al-Assad. (205) Despite numerous warnings by the United States that the use of chemical or biological weapons would cross a "red line" drawn by President Obama on August 21, 2013, the Syrians used chemical weapons against their own people. (206) On August 31, 2013, President Obama provided to Congress a draft Authorization for Use of Force against Syria. (207) his September 2013 speech, the President asserted that looking the other way could hurt U.S. interests by increasing the likelihood that our armed forces would encounter chemical weapons in hostilities. (208) The President also warned that al Qaeda would "only draw strength in a more chaotic Syria." (209) In claiming his authority to "draw a red line" after political pushback from Congress, President Obama stated:

   That's my judgment as Commander-in-Chief. But I'm also the
   President of the world's oldest constitutional democracy. So even
   though I possess the authority to order military strikes, I
   believed it was right, in the absence of a direct or imminent
   threat to our security, to take this debate to Congress. I believe
   our democracy is stronger when the President acts with the support
   of Congress. And I believe that America acts more effectively
   abroad when we stand together. (210)

Ultimately, Congress never voted on whether to give the President authority to take military action because Russia brokered a deal ensuring that all chemical weapons were removed from Syria. (211) The media reports indicate that there was modest support, even among Democrats, to authorize the use of force in Syria. (212) Because the diplomatic solution was effective, we do not know what would have happened if Congress had refused the President's request for statutory authorization to take military action. He could have abided by that decision or opted to rely on his authority as Commander in Chief and taken action anyway.

In my judgment, it was a mistake for President Obama to issue an ultimatum and then approach Congress to gauge support for military force. There should be no doubt that any country that ignores our warnings will suffer the consequences. If the President truly believed congressional support was legally necessary to use force, then he should have gauged congressional support before issuing the ultimatum.

As for whether the President had the authority to take action alone, I believe that is a hard question. The best arguments may have already been made by the Administration; but if these arguments are accepted, then arguably use of force under virtually all circumstances would be justified. The problem for the President is that there does not appear to be congressional support here, nor was there was a direct link or threat to U.S. interests. In his remarks, the President admitted there was no direct or imminent threat to our security. Thus, it is hard to argue that the President has express or inherent power under the Constitution to use force.

B. Islamic State of Iraq and the Levant (ISIL)

Another illustration of the struggle of separation of powers in regard to the President's authority to facilitate military operations overseas concerns ISIL. (213) Forming after the U.S. invasion of Iraq in 2003, ISIL acted as the al Qaeda affiliate throughout Iraq and later gained power over Islamic fighters in Syria. (214) As of September 2014, ISIL is believed to control large swaths of land, up to 35,000 square miles, in Iraq and Syria. (215) In addition to the numerous human rights atrocities committed by ISIL against the civilian populations of Iraq and Syria, (216) ISIL has publicly beheaded two American journalists and one American aid worker, as well as several aid workers from other countries. (217)

On August 7, 2014, President Obama authorized targeted airstrikes in Iraq to combat ISIL movement towards Erbil, Iraq, housing the American consulate, and Mount Sinjar, where ISIL called for genocide of the Yezidi people. (218) As legal authority to conduct these military operations in Erbil, the President relied on his authority as Commander in Chief to protect American personnel and facilities abroad. (219) Concerning Mount Sinjar, the executive branch relied on the request from the Iraqi government and the overwhelming need for humanitarian aid in the region as grounds for intervention. 220 Notwithstanding the President's sole authority to carry out these missions, he has filed reports in compliance with the War Powers Resolution. (221)

On September 10, 2014, President Obama delivered a primetime address to the nation outlining broader military action against ISIL. (222) This action entails broader airstrikes against ISIL strongholds and leaders throughout Iraq and Syria, additional support to local government militaries, sophisticated and collaborative counterterrorism strategies with global partners, and continued humanitarian aid to affected civilian populations. (223) In a White House background conference call held before the President's address, a senior administration official stated:

   [T]o be clear, we do not believe the President needs [a]
   new authorization [from Congress] in order to take
   sustained action against ISIL. We believe that he can
   rely on the 2001 AUMF as statutory authority for the
   military airstrike operations he is directing against
   ISIL, for instance. And we believe that he has the authority
   to continue these operations beyond 60 days,
   consistent with the War Powers Resolution, because
   the operations are authorized by a statute. (224)

It has been the view of the Obama administration that the 2001 AUMF does not apply to all terrorist organizations, but only those linked to the September 11 attacks or associated forces. (225) Jeh Johnson, current Secretary of Homeland Security and former General Counsel to the Department of Defense, defines an "associated force" as a group that is "(1) an organized, armed group that has entered the fight alongside al Qaeda, and (2) is a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners." (226)

While it is not questioned that ISIL was once an associated force of al Qaeda, the designation seemingly no longer applies since al Qaeda has purposefully distanced itself from ISIL. (227) Press Secretary Josh Earnest stated the administration formed the view that the AUMF continued to apply to ISIL as an associated force of al Qaeda based on ISIL's prior history and name "al Qaeda in Iraq;" continued similarity of operatives and fighters since the public split; perpetuation of the same barbaric acts and tactics as al Qaeda; and the ideology of both ISIL and al Qaeda to establish an Islamic caliphate. (228)

President Obama may also rely on the 2002 AUMF in Iraq as an alternative authorization at least in part for the military operations in Iraq. (229) This legal analysis turns on the question of whether the fight against ISIL is a continuation of the original war or the start of a new one. (230) Given that President Obama's administration has publicly stated the Iraq AUMF is "no longer used for any U.S. government activities and the Administration fully supports its repeal," (231) it is a difficult proposition to rely on its authority now. New York University law professor Ryan Goodman finds "the theory 'a stretch' and 'politically awkward' because ... it amounted to a concession that Mr. Obama 'was unsuccessful in closing out the conflict.'" (232)

As discussed, President Obama has asserted that he has the statutory authority to move forward with military operations against ISIL. However, in his address to the nation he called on Congress to support the action (233) and senior administration officials have suggested that this may be accomplished through a new authorization for use of military force. (234)

Under the Youngstown tripartite scheme of executive branch power, the President is at his highest level of power when he acts with statutory support from Congress. (235) Relying on the 2001 AUMF and 2002 Iraq AUMF passed by Congress, President Obama believes he has the authority to act without further approval from Congress. Neither of the AUMFs have been repealed and therefore they are still good law. The Obama Administration has found a legal framework upon which to place the fight against ISIL within these statutes. It would appear the only way to halt this reliance upon the statutes is through litigation. But as discussed in this article, the justiciability of cases against the President's foreign affairs decisions is hard to overcome. Legally speaking, President Obama is within his authority as Commander in Chief, with support of the Congress, to authorize military operations against ISIL.

Politically speaking, however, it may be in the best interest of the President to ask Congress to pass a new authorization for use of military force against ISIL. This "concession" to Congress would bolster support among politicians who will be forced to fund the military actions and fall in line with the President's actions. Further, it would improve President Obama's image that he does not support the separation of powers doctrines through refusing to consult with Congress on major foreign actions.

The arguments for and against the President's authority to authorize air strikes are all set out above. From my perspective, the President's strongest argument is one of self-defense. Three Americans have already been beheaded and there is no indication ISIL will not strike again against American interests. No person, group, or country can be allowed to brazenly kill American citizens. There must be a response, and such a response would be lawful in self-defense, provided that the response is proportionate and symmetrical.

C. CIA Torture Report

On December 9, 2014, the Senate Intelligence Committee released a 528-page report detailing numerous interrogation techniques used by the CIA on detained terrorism suspects. (236) The report labels as torture many enhanced techniques, including sleep deprivation, prolonged periods in stress positions, and waterboarding, and blames the program for the death of at least one detainee and the rise of major psychological and behavioral issues in others. (237) Further, the report finds that the CIA routinely overruled officer requests to end the use of such techniques (238) and misled the White House and Senate concerning the actual number of detainees subjected to enhanced techniques throughout the life of the program. (239)

While the report is questionable in its accuracy, (240) it brings to light the important issue of how much power the executive branch solely should wield on issues such as the use of enhanced interrogation techniques on detainees. In this case, lawyers at the Department of Justice approved the legality of the program based in part on the understanding that the techniques were effective. The CIA managed and oversaw the program beginning in late 2001. Congress was notified of the program in September 2002, although information was restricted to only the chairman and vice chairman of the Senate Intelligence Committee until September 2006. (241) The release of the report has raised many questions: Should the executive branch have reached out for congressional approval before the program was initiated? Should the White House have provided more oversight over the CIA, or should the oversight role belong to Congress? How should the courts view the report and the actions of those who performed a role in the creation and management of the CIA program?

As a member of the Bush Administration during that time, I was involved in discussions relating to the legality of the tactics when applied under strict guidelines, including the supervision of experienced interrogators and qualified medical personnel. The Department of Justice issued multiple legal opinions focusing on our legal obligations under domestic and international law. The United States entered into one important obligation derived from the Convention Against Torture during the Reagan Administration. (242) Before this time, there was no domestic law outlawing torture. The Convention required every country that entered into the treaty to pass a law outlawing torture, which the United States did by outlawing the intentional infliction of severe physical or mental pain or suffering. (243) However, what is often overlooked is that the Convention Against Torture prohibits two separate levels of conduct; one is torture, and the other is "cruel, inhuman and degrading treatment." (244) The treaty did not require any country to outlaw this second level of conduct, so there is no domestic criminal statute that makes it unlawful to engage in cruel, inhuman, and degrading treatment. Nonetheless, for cruel, inhuman, and degrading treatment, the United States applies the Fifth Amendment "shocks the conscience" test as the legal standard applicable to the interrogation of suspected terrorists regarding future terrorist attacks under the Convention Against Torture. (245)

In analyzing whether techniques like waterboarding, nudity, and sleep deprivation violate our domestic law against torture, Department of Justice lawyers analyzed whether or not the acts were considered torture and whether they were cruel, inhuman, or degrading. (246) This distinction between these levels of conduct is often lost to the general public. Thus, a technique may be viewed by the general public as cruel, inhuman, or degrading, but it might not necessarily constitute torture under domestic law. Furthermore, the technique would not be considered cruel, inhuman, or degrading if given the totality of circumstances, it does not shock the conscience. Thus, these acts would not violate our international obligations under the Convention Against Torture.

Today we know that congressional leaders were briefed on CIA actions and on the relevant legal guidance from the Department of Justice. (247) We also know from a briefing by CIA Director John Brennan that CIA personnel in certain instances did not follow Justice Department guidelines. (248) Finally, we know that Senator Feinstein, former Chair of the Senate Intelligence Committee, has introduced legislation to prohibit the use of enhanced interrogation techniques going forward. (249)

There are several lessons from all this. First, when our nation is under attack and lives are at risk, there is tremendous pressure to get information. Abuses will occur during wartime in spite of legal guidance and restrictions. Given this, is it dangerous to place so much authority and discretion in the executive branch with respect to national security? Are we better off as a nation with Senator Feinstein's legislation? The second lesson is that any executive branch official involved in a controversial program--however well intentioned--will likely see his or her actions scrutinized and second guessed. It is uncomfortable and may be unfair, but that is part of public service. Every public official must do the best he or she can with the available information and guidance, and be willing to accept the consequences.

However, the legality of the CIA program is only one piece of this analysis. After it was decided that the program could move forward under the laws of the United States, it was then up to the CIA to manage the program and ensure that all actions taken stayed within the parameters of the law. The question of whether the White House should have provided oversight to the program lends itself to, in my opinion, a simple answer: Oversight of the CIA program was not a function of the White House once the program was approved. Whether or not the CIA followed the Justice Department's guidance was the responsibility of the CIA's senior leadership, inspector general, and general counsel.

As to that, the CIA Report alleges that there was virtually no oversight of the program even within the CIA. According to the report, those who went beyond the legal parameters went unpunished, and those who questioned the use or instrumentalities of the program were not heard. (250) It is here that further congressional oversight and an ex-post review by the judiciary could provide accountability for executive branch agencies and reassure the American public. By being required to consistently report to congressional committees concerning controversial programs, the agency is motivated to stay within the bounds of the law. Such a system need not compromise our national security; because these programs involve some of our nation's most sensitive secrets, there should be harsh consequences for congressional members or staff who compromise classified information.

Furthermore, Congress and the American public must understand that certain interrogation techniques, while they may seem to cause some suffering, may nevertheless be lawful and necessary in these dangerous times. In appropriate cases where our national security can be protected, an ex-post review by the judiciary can determine the legality of the actions based on a full understanding of the circumstances. This level of review would force those authorizing the techniques to consider whether their choices would be upheld under judicial scrutiny. Mistakes and miscalculations will always be made in the war against terror, but greater oversight from Congress and judicial review in appropriate circumstances can ensure that we learn from those mistakes and avoid them in the future.


During my tenure at the White House, and then later at the Justice Department, I had numerous conversations with President Bush regarding his legal authority to take actions to protect our country. I advised the President that in a time of war or other emergency, the American people would expect him to defend us. That was his job. President Bush was not a lawyer, but he was curious about his authority to order surveillance, detention, interrogations, intelligence collection, economic sanctions, and the use of force. I never sensed that he wanted to expand presidential power for the sake of accumulating power or aggrandizing himself or the presidency. In my judgment, he wanted to know the limits of his power because we were confronting a dangerous threat and, while we would not go beyond legal limits, he would order executive branch actions to the limits of his authority, if necessary.

The Framers of the Constitution established a government of separate powers with the goal of checking the power of each of the branches to prevent tyranny, in particular tyranny by the executive branch. In the past, accountability was viewed as more important than flexibility. While both clearly remain important today, in my judgment the balance has tilted towards the need to be flexible. To be sure, however, accountability remains important, meaning that the legislative and judicial branches have to step up and discharge their constitutional duties, not to second guess national security policy but to validate separation of powers.

Many of the traditional concepts of the executive's role in national security remain consistent today. However, because of the scope of the September 11 attacks and the spread of terrorism around the world, the authority of the executive branch has expanded as necessary to deal with new types of threats. These new threats do not always adhere to traditional notions. The next attacker is likely to look like an American citizen, speak perfect English, and be able to travel freely within our borders. She will be trained and indoctrinated over the Internet. Today's enemies live in the shadows; their primary weapons will likely not be guns and bullets, but cyber warfare and biological terror.

The idea of a President with expansive, seemingly unchecked power to respond to these new threats should be uncomfortable for any citizen who loves freedom, particularly when the potential cost of a bad decision is billions of dollars and the lives of our most precious assets--our young men and women in uniform. However, the thought of leaving decisions demanding quick answers to Congress or the courts when those same lives are at stake is no less disturbing. The country needs a leader to be decisive, especially in the area of national security. In times of emergency, this is simply the primary responsibility Congress cannot perform with the same speed, agility, and force as the executive branch. The courts are likewise unable to respond with the same effectiveness. The case studies above demonstrate the need for flexibility to respond to rapidly changing events. This is not to say that we should set aside our fears of the concentration of power in one branch of government. To the contrary, we must always be vigilant for the possibility--even likelihood--of tyranny when so much power resides in one individual.

Under the appropriate circumstances, and when time permits, Congress should insist on prior consultation. Congress must engage in vigorous oversight and be unafraid to question executive action and to test the assumptions that drive executive decisions. Further, the courts must be willing to provide a forum to test the presumption of validity in favor of executive action. Additionally, a vibrant and skeptical press is essential in discouraging unfavorable behavior, exposing government wrongdoing, and educating the public. Finally, the American people must continue to elect to Congress members with the courage to demand accountability from the executive branch--even those from their own political party. Hopefully the American people will always elect Presidents of integrity and character who will not abuse power for personal or political gain, Presidents who understand the need for accountability to ensure the survival of this Republic. But in case we do not, Congress and the courts must be there to step into the breach in defense of liberty.

(1.) Personal Account of Alberto R. Gonzales, former Counsel to President George W. Bush, 2001-2005.

(2.) Id.

(3.) Id.

(4.) Id.

(5.) Id.

(6.) Id.

(7.) Id.

(8.) Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2050 (2005).

(9.) See id. at 2059-60 ("[T]he United States has been involved in hundreds of military conflicts that have not involved declarations of war.").

(10.) Many scholars and historians believe we are witnessing an unprecedented expansion of power within the executive branch. Not surprisingly, virtually all the criticism and examination relates to the exercise of presidential power. But there is another expansion of power--a silent epidemic--within the executive branch that receives hardly any mention. This is the expansion of the administrative state, the orbit of federal agencies that have been afforded the power to perform legislative functions such as promulgating rules and regulations, the power to exercise executive functions such as enforcing those rules, and the power to perform judicial functions such as adjudicating disputes over its own rules. The ratio of regulations issued in 2013 by independent appointees and career bureaucrats unaccountable to the American public at these agencies, relative to laws passed by Congress, is estimated at fifty-one to one. CLYDE W. CREWS JR., COMPETITIVE Enterprise Inst., Ten Thousand Commandments: An annual Snapshot of the Federal Regulatory State 2 (2014), available at default/files/Wayne%20Crews%20-%20Ten%20Thousand%20Commandments %202014.pdf []. Since 1993, federal agencies have published 87,282 final rules, id., and in most cases did so through a very broad and vague delegation of authority by Congress. There has been little oversight by Congress, certainly as compared to oversight of executive Cabinet agencies. The courts have been equally deferential, holding that agency decisions and agency interpretations of their organic statutes should be given broad latitude. Perhaps the distribution of power away from our elected officials is necessary in a growing and complex world. Perhaps limiting the discretion of federal agencies will increase litigation and further burden our courts. Perhaps Congress cannot be expected to delegate in a more precise manner on complex issues; perhaps congressional members do not have time for oversight of the administrative agencies because of the necessary oversight of executive agencies. Whatever the reasons, it is clear that administrative agencies have great discretion in exercising power. Whether the expansion of the administrative state is a good thing and how it affects national security decision-making is a relevant question, but it is beyond the scope of this article.

(11.) Bradley & Goldsmith, supra note 8, at 2051; Charlie Savage, Attack Renews Debate Over Congressional Consent, N.Y. TIMES, Mar. 22, 2011, at A14.

(12.) U.S. Const, art. II, [section] 2, cl. 1.

(13.) Bradley & Goldsmith, supra note 8, at 2057-60.

(14.) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring); see Roy E. Brownell II, The Coexistence of United States v. Curtiss-Wright and Youngstown Sheet & Tube v. Sawyer in National Security Jurisprudence, 16 J.L. & POL. 1, 50 (2000).

(15.) Another factor that keeps certain disputes out of the court system is the state secret privilege, which allows an executive department head to claim privilege regarding evidence that presents a reasonable possibility of revealing national security secrets. In Totten v. United States, the Supreme Court explained that "public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated." 92 U.S. 105, 106 (1875).

(16.) See Stephen I. Vladeck, The Supreme Court, the War on Terrorism, and the Separation of Powers, HUMAN Rights, Winter 2011, at 13, 15.

(17.) See Robert J. Delahunty & John Yoo, Making War, 93 CORNELL L. REV. 123, 129 (2007).

(18.) See id. at 130.

(19.) Personal Account of Alberto R. Gonzales, supra note 1.

(20.) See U.S. CONST.

(21.) U.S. CONST, art. I, [section] 8, cl. 1.

(22.) U.S. CONST, art. I, [section] 8, cl. 11.

(23.) U.S. CONST, art. I, [section] 8, cl. 12.

(24.) U.S. CONST, art. I, [section] 8, cl. 13.

(25.) U.S. CONST, art. II, [section] 2, cl. 1.

(26.) The Federalist No. 51 (James Madison).

(27.) See, e.g., Delahunty & Yoo, supra note 17, at 127-29.

(28.) U.S. CONST, art. II, [section] 2, cl. 1.

(29.) David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb--Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 779 (2008).

(30.) See Commission to General Monck as Commander in Chief (Jan. 26, 1659), in 4 THE Clarke Papers 137-39 (photo-reprint 1965) (C.H. Firth ed.; 1901).

(31.) Barron & Lederman, supra note 29, at 773-74.

(32.) Id. at 778.

(33.) U.S. CONST, art. I, [section] 8, cl. 11 (emphasis added).

(34.) See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 261-63 (1996).

(35.) Id.

(36.) 67 U.S. 635 (1862).

(37.) Id. at 635-37.

(38.) Id. at 640-41.

(39.) Id. at 668.

(40.) See S. Rep. No. 90-797, at 5-6 (1967).

(41.) See Alexander Chanock, Fixing the War Powers Resolution in the Age of Predator Drones and Cyber-Warfare, 78 J. AIR L. & COM. 453, 454 (2013).

(42.) Id.

(43.) Id.

(44.) Id.

(45.) Id. at 454-55.

(46.) Pub. L. No. 93-148, 87 Stat. 555 (1973).

(47.) Note, Congressional Control of Presidential War-Making Under the War Powers Act: The Status of a Legislative Veto After Chadha, 132 U. PA. L. REV. 1217, 1218 (1984).

(48.) Personal Account of Alberto R. Gonzales, supra note 1.

(49.) Lori Fisler Damrosch, The Clinton Administration and War Powers, 63 LAW & Contemp. PROBS. 133, 134 (2000).

(50.) Personal Account of Alberto R. Gonzales, supra note 1.

(51.) 50 U.S.C. [section] 1544 (2012).

(52.) Stephen L. Carter, The Constitutionality of the War Powers Resolution, 70 Va. L. Rev. 101, 103-04 (1984).

(53.) 50 U.S.C. [section] 1544 (2012).

(54.) Chanock, supra note 41, at 457-58.

(55.) Id. at 456.

(56.) Id.

(57.) Id.

(58.) 676 F. Supp. 333 (D.D.C. 1987).

(59.) Id. at 340-41 n.53.

(60.) Chanock, supra note 41, at 458.

(61.) Id. at 459.

(62.) Id.

(63.) Id.

(64.) Id. at 459-60.

(65.) Pub. L. No. 93-148, 87 Stat. 555 (1973).

(66.) Id.

(67.) Chanock, supra note 41, at 455.

(68.) Id. at 464.

(69.) Id. at 463.

(70.) Id. at 464.

(71.) Id.

(72.) Id.

(73.) Id. at 468.

(74.) Id. at 469-70.

(75.) Id.

(76.) Id. at 471.

(77.) Id. at 473.

(78.) See Congressional Control of Presidential War-Making, supra note 47, at 1218.

(79.) Personal Account of Alberto R. Gonzales, supra note 1.

(80.) Authorization for Use of Military Force Against Iraq Resolution, Pub. L. No. 102-1, 105 Stat. 3 (1991). Some may question whether a U.N. resolution is sufficient to provide the President with legal authority to use force. In June of 1950, President Truman authorized U.S. military forces to intervene in the Korean conflict without congressional approval or an overt attack on American interests. See Louis Fisher, The Korean War: On What Legal Basis Did Truman Act?, 89 Am. J. Int'l L. 21, 32 (1995). President Truman relied on a resolution ordering North Korea to halt its military action against the Republic of Korea and, if necessary, authorizing the use of military force from United Nations members to achieve this goal. Id. Although the Korean conflict lasted many years, it is important to note that while Congress never expressly declared war, the courts held that the nation was at war in suits incidental to the conflict. Weissman v. Metropolitan Life Ins. Co., 112 F. Supp. 420, 425 (S.D. Cal. 1953) ("We doubt very much if there is any question in the minds of the majority of the people of this country that the conflict now raging in Korea can be anything but war."). Some scholars believe that the Korean War was the beginning of the "imperial president" acting without constitutional authority to introduce American troops on foreign land and set an unnerving precedent for future administrations. Fisher, supra, at 37-38. Others say that President Truman's actions were wholly constitutional based on the U.N. Charter and congressional enactment of the U.N. Participation Act. Robert F. Turner, Truman, Korea, and the Constitution: Debunking the "Imperial President" Myth, 19 HARV. J.L. & PUB. POL'Y 533, 580-81 (1996). Both sides agree, however, notwithstanding whether or not the President has the sole constitutional authority to do so, that it is wise policy for Presidents to convene Congress and seek specific approval for their military actions. Id. at 583; Fisher, supra, at 37.

(81.) Jennifer K. Elsea & Matthew C. Weed, Cong. Research Serv., RL31133, Declarations of War and Authorization for the Use of Military Force: Historical Background and Legal Implications 12, 13 (2014).

(82.) Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).

(83.) Elsea & Weed, supra note 81, at 16.

(84.) Id.

(85.) Id. at 16-17.

(86.) AUMF Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1501 (2002).

(87.) AUMF Against Iraq Resolution, Pub. L. No. 102-1, 105 Stat. 3 (1991).

(88.) AUMF Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1501 (2002).

(89.) Personal Account of Alberto R. Gonzales, supra note 1.

(90.) Foreign Intelligence Surveillance Act, Pub. L. No. 95-511, 92 Stat. 1783 (1978).

(91.) See United States v. Rosen, 447 F. Supp. 2d 538, 543-44 (E.D. Va. 2006).

(92.) See In re Sealed Cases, 310 F.3d 717, 719-20 (FISA Ct. Rev. 2002).

(93.) Nola K. Breglio, Leaving FISA Behind: The Need to Return to Warrantless Foreign Intelligence Surveillance, 113 YALE L.J. 179, 189 (2003).

(94.) Evan Perez, Secret Court's Oversight Gets Scrutiny, WALL ST.)., June 9, 2013, http://online.wsj.eom/news/articles/SB10001424127887324904004578535670310514 616 []; see also U.S. DOJ OFFICE OF LEGISLATIVE AFFAIRS, Office of the Assistant Attorney General (Apr. 30, 2014), http://www. [ A8ZN-XH35],

(95.) See Breglio, supra note 93.

(96.) Personal Account of Alberto R. Gonzales, supra note 1.

(97.) Id.

(98.) Id.

(99.) See generally The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, 25 Op. O.L.C. 1, 188 (2011).

(100.) John Yoo, The Terrorist Surveillance Program and the Constitution, 14 GEO. Mason L. Rev. 565,565 (2007).

(101.) See Brian R. Decker, "The War of Information"; The Foreign Intelligence Surveillance Act, Hamdan v. Rumsfeld, and the President's Warrantless Wiretapping Program, 9 U. Pa. J. Const. L. 291,300 (2006).

(102.) 18 U.S.C. [section] 2511(2)(f) (2012).

(103.) Personal Account of Alberto R. Gonzales, supra note 1.

(104.) Id.

(105.) Id.

(106.) Wartime Executive Power and the NSA's Surveillance Authority: Hearing Before the S. Comm, on the Judiciary, 109th Cong. (2006) (statement of Alberto Gonzales, Att'y Gen. of the United States).

(107.) Administration White Paper: Bulk Collection of telephony Metadata UNDER SECTION 215 OF the USA PATRIOT Act 3 (Aug. 9, 2013), available at [].

(108.) U.S. Dep't of Justice, Report on the National Security Agency's Bulk Collection Program for USA PATRIOT Act Reauthorization (Feb. 2, 2011), available at Reauthorizations-Report-Collection [].

(109.) Id.

(110.) See Administration White Paper, supra note 107, at 2.

(111.) 50 U.S.C. [section] 1861(a)(1) (2012) ("[T]he Director of the Federal Bureau of Investigation ... may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.").

(112.) Administration White Paper, supra note 107, at 7-8.

(113.) Id. at 5.

(114.) Report on the National Security Agency's Bulk Collection Program FOR USA PATRIOT ACT REAUTHORIZATION, supra note 108.

(115.) Smith v. Maryland, 442 U.S. 735, 743M6 (1979) ("This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.").

(116.) Administration White Paper, supra note 107, at 21 ("That standard [reasonableness] requires a balancing of 'the promotion of legitimate Governmental interests against the degree to which [the search] intrudes upon an individual's privacy.' Maryland v. King, 133 S. Ct. 1958, 1970 (2013) (internal citation and quotation marks omitted). Such a balance of interests overwhelmingly favors the Government in this context.").

(117.) Klayman v. Obama, 957 F. Supp. 2d 1, 43-44 (D.D.C. 2013).

(118.) See Jennifer Stisa Granick & Christopher Jon Sprigman, The Criminal N.S.A., N.Y. TIMES, June 27, 2013, [] ("Through a series of legal contortions, the Obama administration has argued that Congress, since 9/11, intended to implicitly authorize mass surveillance. But this strategy mostly consists of wordplay, fear-mongering and a highly selective reading of the law.").

(119.) See Dianne Feinstein, Continue NS A Call-Records Program, USA TODAY, Oct. 20, 2013, debates/3112715/ [].

(120.) Laura K. Donohue, Bulk Metadata Collections: Statutory and Constitutional Considerations, 37 Harv. J.L. & Pub. POL'Y 757, 759-60 (2014).

(121.) 50 U.S.C. [section][section] 3091-3092 (2012).

(122.) Personal Account of Alberto R. Gonzales, supra note 1. Perhaps this concern can be addressed by tougher penalties for government employees who leak confidential information.

(123.) 50 U.S.C. [section] 3093(c)(2) (2012).

(124.) See id.

(125.) Personal Account of Alberto R. Gonzales, supra note 1.

(126.) 5 U.S.C. [section][section] 552 (a)(3)(E), (b)(7)(D) (2012).

(127.) See generally Brownell, supra note 14.

(128.) United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936).

(129.) Id. at 315-16 ("The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.").

(130.) See e.g., Dames & Moore v. Regan, 453 U.S. 654 (1981) (upholding President Carter's executive order freezing Iranian assets); Goldwater v. Carter, 444 U.S. 996 (1979) (declining to challenge the President's power to rescind a treaty with Taiwan); Train v. City of New York, 420 U.S. 35 (1975) (invalidating President's power to impound congressionally appropriated funds); United States v. Nixon, 418 U.S. 683 (1974) (dissmissing the President's plan to keep secrets from other branches of government); United States v. United States District Court, 407 U.S. 297 (1972) (invalidating the use of warrantless wiretaps).

(131.) Id.

(132.) Erwin Chemerinsky, Controlling Inherent Presidential Power: Providing a Framework for Judicial Review, 56 S. CAL. L. REV. 863, 870 (1983).

(133.) Id. at 868.

(134.) Id. at 867-68, 878.

(135.) Id. at 872.

(136.) Id. at 874.

(137.) Id.

(138.) See Nat'l Comm'n on Terrorist Attacks Upon the United States, 9/11 COMMISSION REPORT 25, 37, 326 (2004) [hereinafter 9/11 COMMISSION REPORT],

(139.) Id. at 330-31.

(140.) One of the first major actions taken by the United States following September 11 was to register immigrants and visitors from Middle Eastern countries. Registration of Certain Nonimmigrant Aliens From Designated Countries, 67 Fed. Reg. 70,526 (November 22, 2002). On September 11, 2002, Attorney General John Ashcroft implemented a program known as the National Security Entry-Exit Registration System (NSEERS), which at first required non-immigrant aliens to register with the INS as they entered the country, and then was expanded to require immigrants from particular countries who were already in the country to register with the INS. Id.; Dep't of Justice, Second Phase of National Security Entry-Exit Registration System Announced, D.O.J. 02-649 (Nov. 22, 2002), archive/opa/pr/2002/November/02_ag_649.htm [], The registration process included identity verification, interviews, photographs, and fingerprinting. Registration of Certain Nonimmigrant Aliens From Designated Countries, 67 Fed. Reg. 70,526 (November 22, 2002). From September to the following May, nearly 83,000 individuals registered with the INS, more than 13,000 of whom were found to be in violation of their visas. Dep't of Homeland Security, Department of Homeland Security Fact Sheet--Changes to the National Security Entry-Exit System (2003). The program also registered more than 127,000 people from Middle Eastern countries as they entered or left the country. Id. These travelers were also required to provide detailed descriptions of their plans and to inform either the State Department or the INS if their plans changed. Registration of Certain Nonimmigrant Aliens From Designated Countries, 67 Fed. Reg. 70,526 (Nov. 22, 2002). The program was phased out in May of 2003, and a more comprehensive program was put into place. Dep't of Homeland Security, Department of Homeland Security Fact Sheet--Changes to the National Security Entry-Exit System

(2003). The other major immigration action taken by the United States was the detention of immigrants for extended periods of time. Karen C. Tumlin, Suspect First: How Terrorism Policy is Reshaping Immigration Policy, 92 CAL. L. REV. 1173 (2004). The United States used the material witness statute to hold immigrants in custody indefinitely, presumably to secure grand jury testimony. Id. Because the government relied on statutes that existed before September 11, it is likely that the executive had authority to take this action before the AUMF. The Supreme Court had the opportunity to hear cases on this and similar detention practices, most notably in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Ashcroft v. Al-Kidd, 131 S. Ct. 2074 (2011). The Court did not reach the merits of either case, instead deciding the cases based on other elements (pleadings and immunity, respectively).

(141.) 9/11 Commission report, supra note 138, at 20.

(142.) Id. at 326.

(143.) See 18 C.F.R. [section][section] 1-1399 (2014).

(144.) See e.g., Iqbal, 556 U.S. 662; INS v. Chadha, 462 U.S. 919 (1983); United States v. Curtiss-Wright Export Corp., 299 U.S. 308 (1936).

(145.) 542 U.S. 507 (2004).

(146.) 548 U.S. 557 (2006).

(147.) Hamdi, 542 U.S. at 536-37.

(148.) Hamdan, 548 U.S. at 593-94.

(149.) Id. at 594-95.

(150.) Marbury v. Madison, 5 U.S. 137, 177 (1803).

(151.) See generally Chemerinsky, supra note 132.

(152.) Id.

(153.) 6 U.S. 170 (1804).

(154.) Id. at 177-78.

(155.) Reid Skibell, Separation of Powers and the Commander in Chief: Congress's Authority to Override Presidential Decisions in Crisis Situations, 13 Geo. MASON L. REV. 183, 214 (2004).

(156.) Id.

(157.) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37 (1952).

(158.) Id. at 637.

(159.) See 453 U.S. 654 (1981).

(160.) Id. at 677-78.

(161.) Id. at 668-69 (quoting Youngstown, 343 U.S. at 637).

(162.) Id. at 678 (quoting Haig v. Agee, 453 U.S. 280, 291 (1981)).

(163.) Id. at 686.

(164.) Youngstown, 343 U.S. at 610-11.

(165.) United States v. Midwest Oil Co., 236 U.S. 459, 474 (1915); see also Haig, 453 U.S. at 291-92.

(166.) Ingrid Brunk Wuerth, International Law and Constitutional Interpretation: The Commander in Chief Clause Reconsidered, 106 MICH. L. REV. 61, 71 (2007).

(167.) See, e.g., Glenn Sulmasy, The Need for a National Security Court System 23 ST. John's J. of Civ. Rts. & Econ. Dev. 1007 (2009).

(168.) See Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 9 (D.D.C. 2010).

(169.) Tenet v. Doe, 544 U.S. 1, 9 (2005).

(170.) See Baker v. Carr, 369 U.S. 186, 217 (1962).

(171.) 418U.S. 166, 166 (1974).

(172.) Id. at 174.

(173.) Id. at 179; see also Raines v. Byrd, 521 U.S. 811, 818-19 (1997); Schlesinger v. Reservists Comm, to Stop the War, 418 U.S. 208, 220-21 (1974) ("[Standing to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution.").

(174.) See Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010); see also Alberto R. Gonzales, Drones: The Power to Kill, 82 GEO. WASH. L. REV. 1, 15-16 (2013).

(175.) Al-Aulaqi, 727 F. Supp. 2d at 8.

(176.) Id. at 9.

(177.) Jennifer Griffin & Justin Fishel, Two U.S.-Born Terrorists Killed in CIA-Led Drone Strike, FOX NEWS (Sept. 30, 2011), 09/30/us-bom-terror-boss-anwar-al-awlaki-killed/ [].

(178.) See Chemerinsky, supra note 132, at 896-98.

(179.) Baker v. Carr, 369 U.S. 186, 217 (1962).

(180.) See Themes Karalis, Foreign Policy and Separation of Powers Jurisprudence: Executive Orders Regarding Export Administration Act Extension in Times of Lapse as a Political Question, 12 CARDOZO J. INT'L & COMP. L. 109, 159 (2004).

(181.) Baker, 369 U.S. at 211; see also Greenham Women Against Cruise Missiles v. Reagan, 591 F. Supp. 1332, 1339 (S.D.N.Y. 1984).

(182.) Orlando v. Laird, 443 F.2d 1039, 1040 (2d Cir. 1971).

(183.) Id.

(184.) Id. at 1042.

(185.) Id. at 1043-44.

(186.) See, e.g., Louis Fisher, Congressional Abdication: War and Spending Powers, 43 St. LOUIS U. L.J. 931, 1005 (1999) (arguing that Congress has "abdicated crucial institutional powers to the President"); Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314, 2320 (2006) (describing the "demise of the congressional checking function").

(187.) See generally Noah Feldman, Our Presidential Era: Who Can Check the President?, N.Y. TIMES, Jan. 8, 2006, 08court.html?pagewanted=.all&_r=0 []; Matthew C. Waxman, The Power to Threaten War, 123 YALEL.J. 1626 (2014).

(188.) U.S. Const, art. I, [section] 8, cl. 1-2.

(189.) U.S. Const, art. I, [section] 9, cl. 7.

(190.) U.S. CONST, art. I, [section] 8, cl. 12.

(191.) Richard D. Rosen, Funding "Non-Traditional" Military Operations: The Alluring Myth of a Presidential Power of the Purse, 155 Mil. L. Rev. 1, 12-13 (1998).

(192.) Louis Fisher, Presidential Independence and the Power of the Purse, U.C. DAVIS J. Int'l L. & Pol'y 107, 124-25 (1997).

(193.) Mitchell v. Laird, 488 F.2d 611, 615 (D.C. Cir. 1973) ("This court cannot be unmindful of what every schoolboy knows: that in voting to appropriate money or to draft men a Congressman is not necessarily approving of the continuation of a war no matter how specifically the appropriation or draft act refers to that war. A Congressman wholly opposed to the war's commencement and continuation might vote for the military appropriations and for the draft measures because he was unwilling to abandon without support men already fighting.").

(194.) United States v. Sisson, 294 F. Supp. 511, 514 (D. Mass. 1968).

(195.) E.g., Memorandum on Designation of Officers of the General Services Administration to Act as Administrator of General Services, 78 Fed. Reg. 59, 161 (Sept. 20, 2013).

(196.) See generally R. Lawrence Dessem, Congressional Standing to Sue: Whose Vote is This, Anyway ?, 62 NOTRE Dame L. Rev. 1 (1986).

(197.) Jacob Gershman, A Legal Preview of Boehner v. Obama, WALL ST. ]., July 2, 2014, [http://perma. cc/3BJT-KTYY].

(198.) Feldman, supra note 187.

(199.) Sean Sullivan, GOP Congressman Says House Probably has Votes to Impeach Obama, WASH. POST, Jun. 17, 2014, house-probably-has-votes-to- impeach-obama/ []; Kucinich introduces Bush impeach merit resolution, CNN (June 11, 2008, 3:07 AM), 2008/POLITICS/06/ll/kucinich.impeach/ [].

(200.) Feldman, supra note 187.

(201.) Tom Cohen, Obama impeachment talk just political theater, CNN (Aug. 27, 2014, 3:42 PM), http://www.cnn.corn/2014/07/30/politics/obama-impeachmenttalk/ [],

(202.) See generally Martin A. Rogoff & Edward Collins, Jr., The Caroline Incident and the Development of International Law, 16 BROOK. J. INT'L L. 493 (1990).

(203.) Personal Account of Alberto R. Gonzales, supra note 1.

(204.) Id.

(205.) Barack Obama, Remarks by the President in Address to the Nation on Syria, WHITE house, Sept. 10, 2013, 09/10/remarks-president-address-nation-syria [].

(206.) Barack Obama, Remarks by the President to the White House Press Corps, White House, Aug. 20, 2012, 08/20/remarks-president-white-house-press-corps []; See also John Kerry, Statement on Syria, U.S. DEPT. OF STATE, Aug. 30, 2013, [].

(207.) Text of draft legislation submitted by Obama to Congress, CNN (Aug. 31, 2013, 8:10 PM), [].

(208.) Obama, supra note 205.

(209.) Id.

(210.) Id.

(211.) Barack Obama, Weekly Address: Pursuing a Diplomatic Solution in Syria, WHITE House, Sept. 14, 2013, 09/14/weekly-address-pursuing-diplomatic-solution-syria [],

(212.) Modest Support for Military Force if Syria Used Chemical Weapons, PEW Research, Apr. 29, 2013, [].

(213.) The Islamic State of Iraq and the Levant (ISIL) is also referred to as the "Islamic State" or "Islamic State of Iraq and Great Syria (ISIS)" in many publications. For purposes of this article, the organization will be referred to as "ISIL", in continuity with its designation as a Foreign Terrorist Organization by the U.S. Secretary of State. See Terrorist Designations of Groups Operating in Syria, U.S. DEPT. OF STATE, May 14, 2014, http://www.state.gOv/r/pa/prs/ps/2014/05/226067.htm [http://].

(214.) In February 2014, al Qaeda renounced all ties with ISIL and stated it was not responsible for ISIL's actions. Oliver Holmes, Al Qaeda breaks link with Syrian militant group ISIL, REUTERS (Feb. 3, 2014), 2014/02/03/us-syria-crisis-qaeda-idUSBREA120NS20140203 [],

(215.) Kathy Gilsinan, The Many Ways to Map the Islamic 'State,' The Atlantic (Aug. 27, 2014, 3:39 PM), 08/the-many-ways-to-map-the-islamic-state/379196/ [].

(216.) Catherine Russell, ISIL's Abuse of Women and Girls Must be Stopped, DIPNOTE, U.S. Dept, of State Official Blog, Sept. 12, 2014, stories/2014/09/12/isils-abuse-women-and-girls-must-be-stopped [ NKR4-JZKN].

(217.) Greg Botelho, ISIS executes British aid worker David Haines; Cameron vows justice, CNN (Sept. 14, 2014), [].

(218.) Barack Obama, Statement by the President, WHITE HOUSE, Aug. 7, 2014, [].

(219.) Background Briefing by Senior Administration Officials on Iraq, WHITE HOUSE, Aug. 8, 2014, iraq [].

(220.) Obama, Statement by the President, supra note 218; Background Briefing by Senior Administration Officials on Iraq, supra note 219.

(221.) Letter from the President--War Powers Resolution Regarding Iraq, WHITE HOUSE, Aug. 8, 2014, iraq []; Letter from the President--War Powers Resolution Regarding Iraq, WHITE HOUSE, Aug. 17, 2014, http:// []; Letter from the President-- War Powers Resolution Regarding Iraq, WHITE HOUSE, Sept. 5, 2014, http://www. []; Letter from the President--War Powers Resolution Regarding Iraq, WHITE HOUSE, Sept. 8, 2014, the-press-office/2014/09/08/letter-president-war-powers-resolution-regarding-iraq [].

(222.) Barack Obama, Statement by the President on ISIL, WHITE HOUSE, Sept. 10, 2014, [http:// perma. cc/Z24 V-B AQG].

(223.) David Hudon, President Obama: "We Will Degrade and Ultimately Destroy ISIL", White House Blog, Sept. 10, 2014, 2014/09/10/president-obama-we-will-degrade-and-ultimately-destroy-isil [http://].

(224.) Background Conference Call on the President's Address to the Nation, WHITE HOUSE, Sept. 10, 2014, background-conference-call-presidents-address-nation [],

(225.) Jeh Johnson, Address at Yale Law School, National Security Law, Lawyers and Lawyering in the Obama Administration, COUNCIL ON FOREIGN RELATIONS, Feb. 2, 2012, administration/p27448 [

(226.) Id.

(227.) Liz Sly, Al-Qaeda disavows any ties with radical Islamist ISIS group in Syria, Iraq, WASH. POST, Feb. 3, 2014, east/al-qaeda-disavows-any-ties-with-radical-islamist-isis-group-in-syria-iraq/ 2014/02/03/2c9afc3a-8cef-lle3-98ab-fe5228217bdl_story.htm] [], As of November 2014, there are reports that Al-Qaeda and ISIL have once again joined forces. Polly Mosendz, Report: ISIS Reaches Agreement with Al-Qaeda, Newsweek (Nov. 14, 2014), isis-islamic-state-iraq-syria-oil-jihad-terrorist-terrorism-284533 [].

(228.) Press Briefing by Press Secretary Josh Earnest, 9/11/2014, WHITE HOUSE, Sept. 11, 2014, [].

(229.) Zeke J. Miller, White House: Iraq War Vote Obama Opposed Could be Used for ISIS Strikes, TIME, Sept. 13, 2014, [].

(230.) Charlie Savage, Obama Sees Iraq Resolution as a Legal Basis for Airstrikes, Official Says, N.Y. Times, Sept. 12, 2014, americas/obama-sees-iraq-resolution-as-a-legal-basis-for-airstrikes-officialsays.html [].

(231.) Miller, supra note 229.

(232.) Savage, supra note 230.

(233.) Obama, supra note 222.

(234.) Background Conference Call on the President's Address to the Nation, supra note 224.

(235.) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-36 (1952).

(236.) Committee Study of the Central Intelligence Agency's Detention and Interrogation Program, Senate Select Committee on Intelligence (Dec. 9, 2014), available at http:// [].

(237.) Id. at 114.

(238.) Id. at 44.

(239.) Id. at 15.

(240.) The accuracy of the report is questionable because it was prepared by staffers based only on internal memos and reports without interviewing any of the key players at the CIA, Justice Department, or White House at the time the program was authorized, and was signed only by Democrats on the Committee.

(241.) CIA Detention and Interrogation Report, supra note 236, at 5-6.

(242.) 18 U.S.C. [section][section] 2340-2340A (2012).

(243.) Id.

(244.) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 16, Dec. 10, 1984, 1465 U.N.T.S. 85.

(245.) Memorandum for John A. Rizzo, Acting General Counsel, Cent. Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Re: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to Certain Techniques that May Be Used by the CIA in the Interrogation of High Value al Qaeda Detainees 29 n.28 (July 20, 2007), available at 2009/08/24/memo-warcrimesact.pdf [].

(246.) Memorandum for John A. Rizzo, Senior Deputy General Counsel, Cent. Intelligence Agency, Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees (May 30, 2005), available at 2005.pdf [].

(247.) CIA Detention and Interrogation Report, supra note 236, at 5.

(248.) Eric Bradner, John Brennan defends CIA after torture report in rare press conference, CNN (Dec. 12, 2014, 7:45 AM), john-brennan-defends-cia-after-torture-report/ [].

(249.) Alex Rogers, Feinstein to Introduce Anti-Torture Legislation, Time, Jan. 6, 2015, [].

(250.) CIA Detention and Interrogation Report, supra note 236, at 44.

Alberto R. Gonzales, Former Counsel to the President and the United States Attorney General under the George W. Bush Administration. Before he joined the Bush Administration in Washington, he served as Governor George W. Bush's General Counsel, the Texas Secretary of State, and was later appointed as a Justice on the Supreme Court of Texas. He is currently the Dean and Doyle Rogers Distinguished Professor of Law at Belmont University College of Law. Special thanks to Patty Whitehead for her hard work (Juris Doctor Candidate, 2015, Belmont University College of Law), with the able assistance of Brian Keller (Juris Doctor Candidate, 2016, Belmont University College of Law) and John Stephens (Juris Doctor Candidate, 2015, Belmont University College of Law).
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Title Annotation:I. Frameworks of Presidential Authority C. Inherent Authority of the Executive Branch through IV. Conclusion, with footnotes, p. 477-507
Author:Gonzales, Alberto R.
Publication:Harvard Journal of Law & Public Policy
Date:Mar 22, 2015
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