Opinio Juris Symposium: A Clarification on the President’s Power to Respond to Attacks
Professor Lederman asks in a comment to Professor Kent’s post if we could clarify our disagreement on the President’s power to respond to attacks. Briefly, here is how I understand it. I think both of us agree:
(1) That Congress has the ultimate control over the U.S. response to an attack, in that it can limit the response by statute, or simply refuse to approve funding for certain kinds of responses; and
(2) That in the absence of statutory approval the President can “repel sudden attacks” (as Madison said at the Convention) in a defensive manner, at least until Congress acts.
The disagreement is whether the President can direct offensive measures against the attacker. I am not sure what the line between offensive and defensive response would be, but I assume, for example, that attacking the enemy homeland is an offensive response. My view is that the President can make offensive responses, so I don’t need to draw that line; I will leave to Andrew where he would draw it (and how).
Professor Lederman also asks if there are any modern examples where this would have mattered. I think the answer is no, although I may be missing one. In my view, the President’s power of offensive response is triggered only where another entity attacks the U.S. or U.S. forces in such a way to initiate a state of war. (In other words, an isolated engagement, or alleged engagement, is not enough, nor is an attack on an ally). I think one justification offered for the 1989 invasion of Panama was an attack on U.S. troops in Panama, but I am not clear enough on the facts to know if this should count. The only clear modern example that comes to mind is September 11, and that depends on whether one thinks there can be war with a non-state entity like al-Qaeda. Assuming there can be, my view would give the President independent constitutional power to attack al-Qaeda forces in response, as long as he did not create a state of war with any other nation — for example, he could attack al-Qaeda bases in Pakistan with Pakistan’s permission. (Attacking Afghanistan would require congressional approval though). Of course, the President got approval to respond against al-Qaeda, so the point was not raised.