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Print This PageOpinio 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.
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But, assuming the President’s has the power to take offensive/defensive actions in these circumstances do you consider that their are constraints of necessity and proportionality on that Presidential action or is the President free to move to nuclear weapons immediately?
Best,
Ben
at 5:45 pm EST Benjamin Davis
Thanks, Mike. And what about unilateral presidential actions that are not in response to an attack, but that are arguably short of hostilities amounting to war, as OLC argued with respect to Haiti and Bosnia?
at 6:07 pm EST Marty Lederman
Marty — on Bosnia I think the President’s action was fine under the Constitution’s historical meaning, because it did not create a state of war (at least, as I remember the facts, it was a peacekeeping deployment approved by the affected entities). This would be part of the executive power. Haiti, I would say, was not within the President’s power. I know there was a lot of intellectual firepower behind OLC’s memo, but I would have to respectfully disagree that what Clinton proposed to do in Haiti did not count as a war. The project was to use military force to remove a de facto existing government and replace it with one more to the U.S.’s liking. I think that would count as a war in eighteenth-century terms, albeit perhaps a quick and easy one. (And, except for some facts on the ground that made execution more difficult, Bush’s initial project in Iraq was pretty much the same concept). War, according to Samuel Johnson (1755) is the use of sovereign force against resistance. It didn’t turn on how effective the resistance was likley to be.
Ben — in my framework, the constraints would come from international law, through either Article VI (if reflected in a treaty) or Article II, Section 3 (for non-treaty law). The declare-war clause wouldn’t pose any constraints though, because it wouldn’t be implicated.
Best regards
Mike
at 8:01 pm EST Michael Ramsey
For what it’s worth, here’s some of the OLC rationale on why the Haiti invasion was not a war. (The Opinion also concluded, in the alternative, that the invasion had been legislatively authorized.)
at 8:56 pm EST Marty Lederman
Mike thanks for that clarification.
On the OLC arguments, I regret that they do not discuss why this would not be aggressive war (whatever the Congressional authorization aspect).
I think the consent of the government in exile (called the legitimate government) would be the key.
I vaguely remember that external means of self-determination such as armed conflict were only permitted when internal self-determination was prohibited. So the military coup regime would have a significant question as to its relative legitimacy vis-a-vis the prior regime (called the legitimate government by OLC) that had been elected and had been recognized by a great number of states (evidence of legitimacy). I think the lack of recognition by many states of the defacto government would also lend credence to the idea of this being an action that was with consent of the legitimate government and not aggressive war.
I think that the President was playing games with the term “war” as to the declare-war clause to stretch a bit. I am not sure what the magic number is but the word “invasion” sure sounds like a war of the armed conflict variety whether or not the other side surrenders right away or fights to the death.
Best,
Ben
at 3:54 pm EST Benjamin Davis