What About Congress? The Washington Post Endorses Inherent Executive Power to Use Military Force

by Julian Ku

Following up on Ken’s post about the Washington Post editorial endorsing Harold Koh’s legal defense of targeted killings, it is worth analyzing the passage Ken quoted one more time, but this time from a domestic U.S. constitutional perspective:

Mr. Koh’s reaffirmation of the right to self-defense — even outside the confines of an existing armed conflict — is particularly important. The Authorization for the Use of Military Force(AUMF) after Sept. 11, 2001, empowered the president to pursue those responsible for the attacks, including al-Qaeda and the Taliban. That authority may wane with time. But the right of self-defense is inherent and may be exercised against current and future enemies that pose an imminent threat, including those operating outside of traditional combat zones.

What is fascinating about this passage is that the Post seems to endorsing a general authority of the President to use deadly force against “current and future enemies that pose an imminent threat,” whether or not those enemies fall within the Authorization for the Use of Military Force. The Post seems to be endorsing an “inherent” right of the President to target enemies, with or without congressional authorization.

There was a time when the debate over the use of force by the U.S. government focused almost exclusively on a domestic separation of powers conversation. U.S. legal scholars and elites would engage in debates about when and whether Congressional authorization is required before the President can use military force against U.S. enemies.  I think that this debate is basically over, thanks to the Obama Administration.


2 Responses

  1. The President is accompanied everywhere by an officer carrying “the football”, the nuclear launch codes required to respond to a nuclear attack by any foreign country. If for the last half century the President has been authorized on his own without Congressional involvement to use the most powerful weapons we possess in the most massive military action imaginable, the inherent power of the President to use force in self defense should be obvious to everyone.

    That said, in other situations where less force is applied and there is reason to believe there will be someone left alive to fight the ensuing war, the War Powers Act explicitly grants the President the power to use military force in self defense for a limited period of time. Then he must consult with Congress and get further approval.

    However, in the quoted paraphrase of the Koh remarks, there is nothing to suggest the paper was endorsing an independent power of the President. “Self defense” is a justification for the use of military force by the entire US government and not one particular branch. The AUMF is a Congressional authorization, under the War Powers Act, to use force against the countries, organizations, and persons responsible for 9/11 and those who shelter them. Although “the right of self-defense is inherent and may be exercised against current and future enemies”, that right is exercised by both political branches of the US government. Nothing in the passage asserts that the President has more power or Congress less power when exercising the right of self defense.

    When the AUMF no longer has force (presumably after Bin Laden and the last member of his organization has been hanged), the Congressional grant of authority will no longer be applicable. So the next threat that comes along will provide a new opportunity for a joint response by both the President and Congress in the self defense of the US.

  2. Julian,
    A defensive use of force against an imminent threat is a far cry from an inherent, plenary power to use force whenever and wherever the President wishes.  The latter is the authority John Yoo claimed. “[I]t is clear that Congress’s power to declare war does not constrain the President’s independent and plenary constitutional authority over the use of military force.” Memorandum from John C. Yoo, Deputy Assistant Attorney Gen., to Timothy Flanigan, Deputy Counsel to the President, The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sep. 25, 2001) (emphasis added).

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