Filed: Sep. 25, 2001
Latest Update: Mar. 03, 2020
Summary: The Presidents Constitutional Authority to Conduct, Military Operations Against Terrorists and, Nations Supporting Them, The President has broad constitutional power to take military action in response to the terrorist attacks, on the United States on September 11, 2001. U.S. Const.
The President’s Constitutional Authority to Conduct
Military Operations Against Terrorists and
Nations Supporting Them
The President has broad constitutional power to take military action in response to the terrorist attacks
on the United States on September 11, 2001. Congress has acknowledged this inherent executive
power in both the War Powers Resolution and the Joint Resolution passed by Congress on Septem-
ber 14, 2001.
The President has constitutional power not only to retaliate against any person, organization, or state
suspected of involvement in terrorist attacks on the United States, but also against foreign states
suspected of harboring or supporting such organizations.
The President may deploy military force preemptively against terrorist organizations or the states that
harbor or support them, whether or not they can be linked to the specific terrorist incidents of
September 11.
September 25, 2001
MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT *
You have asked for our opinion as to the scope of the President’s authority to
take military action in response to the terrorist attacks on the United States on
September 11, 2001. We conclude that the President has broad constitutional
power to use military force. Congress has acknowledged this inherent executive
power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555
(1973), codified at 50 U.S.C. §§ 1541-1548 (the “WPR”), and in the Joint
Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115
Stat. 224 (2001). Further, the President has the constitutional power not only to
retaliate against any person, organization, or state suspected of involvement in
terrorist attacks on the United States, but also against foreign states suspected of
harboring or supporting such organizations. Finally, the President may deploy
military force preemptively against terrorist organizations or the states that harbor
or support them, whether or not they can be linked to the specific terrorist
incidents of September 11.
Our analysis falls into four parts. First, we examine the Constitution’s text and
structure. We conclude that the Constitution vests the President with the plenary
authority, as Commander in Chief and the sole organ of the Nation in its foreign
relations, to use military force abroad—especially in response to grave national
emergencies created by sudden, unforeseen attacks on the people and territory of
the United States. Second, we confirm that conclusion by reviewing the executive
and judicial statements and decisions interpreting the Constitution and the
*
Editor’s Note: For the book edition of this memorandum opinion, some of the internet citations
have been updated or replaced with citations of equivalent printed authorities.
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President’s Authority to Conduct Military Operations Against Terrorists
President’s powers under it. Third, we analyze the relevant practice of the United
States, including recent history, that supports the view that the President has the
authority to deploy military force in response to emergency conditions such as
those created by the September 11, 2001 terrorist attacks. Finally, we discuss
congressional enactments that, in our view, acknowledge the President’s plenary
authority to use force to respond to the terrorist attack on the United States.
Our review establishes that all three branches of the federal government—
Congress, the Executive, and the Judiciary—agree that the President has broad
authority to use military force abroad, including the ability to deter future attacks.
I.
The President’s constitutional power to defend the United States and the lives
of its people must be understood in light of the Founders’ express intention to
create a federal government “cloathed with all the powers requisite to [the]
complete execution of its trust.” The Federalist No. 23, at 122 (Alexander
Hamilton) (Charles R. Kesler ed., 1999). Foremost among the objectives commit-
ted to that trust by the Constitution is the security of the Nation. 1 As Hamilton
explained in arguing for the Constitution’s adoption, because “the circumstances
which may affect the public safety are [not] reducible within certain determinate
limits, . . . it must be admitted, as a necessary consequence that there can be no
limitation of that authority which is to provide for the defense and protection of
the community in any matter essential to its efficiency.” Id. 2
“It is ‘obvious and unarguable’ that no governmental interest is more compel-
ling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981)
1
“As Lincoln aptly said, ‘[is] it possible to lose the nation and yet preserve the Constitution?’”
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 662 (1952) (Clark, J., concurring in judgment).
2
See also The Federalist No. 34, at 207 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (federal
government is to possess “an indefinite power of providing for emergencies as they might arise”); id.
No. 41, at 256 (James Madison) (“Security against foreign danger is one of the primitive objects of
civil society. . . . The powers requisite for attaining it must be effectually confided to the federal
councils.”). Many Supreme Court opinions echo Hamilton’s argument that the Constitution presuppos-
es the indefinite and unpredictable nature of the “the circumstances which may affect the public
safety,” and that the federal government’s powers are correspondingly broad. See, e.g., Dames &
Moore v. Regan, 453 U.S. 654, 662 (1981) (noting that the President “exercis[es] the executive
authority in a world that presents each day some new challenge with which he must deal”); Hamilton v.
Regents, 293 U.S. 245, 264 (1934) (federal government’s war powers are “well-nigh limitless” in
extent); Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 506 (1870) (“The measures to be taken in carrying on
war . . . are not defined [in the Constitution]. The decision of all such questions rests wholly in the
discretion of those to whom the substantial powers involved are confided by the Constitution.”); Miller
v. United States, 78 U.S. (11 Wall.) 268, 305 (1870) (“The Constitution confers upon Congress
expressly power to declare war, grant letters of marque and reprisal, and make rules respecting captures
on land and water. Upon the exercise of these powers no restrictions are imposed. Of course the power
to declare war involves the power to prosecute it by all means and in any manner in which war may be
legitimately prosecuted.”).
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(citation omitted). Within the limits that the Constitution itself imposes, the scope
and distribution of the powers to protect national security must be construed to
authorize the most efficacious defense of the Nation and its interests in accordance
“with the realistic purposes of the entire instrument.” Lichter v. United States, 334
U.S. 742, 782 (1948). Nor is the authority to protect national security limited to
actions necessary for “victories in the field.” Application of Yamashita, 327 U.S. 1,
12 (1946). The authority over national security “carries with it the inherent power
to guard against the immediate renewal of the conflict.” Id.
We now turn to the more precise question of the President’s inherent constitu-
tional powers to use military force.
Constitutional Text. The text, structure and history of the Constitution establish
that the Founders entrusted the President with the primary responsibility, and
therefore the power, to use military force in situations of emergency. Article II,
Section 2 states that the “President shall be Commander in Chief of the Army and
Navy of the United States, and of the Militia of the several States, when called into
the actual Service of the United States.” U.S. Const. art. II, § 2, cl. 1. He is further
vested with all of “the executive Power” and the duty to execute the laws. U.S.
Const. art. II, § 1. These powers give the President broad constitutional authority
to use military force in response to threats to the national security and foreign
policy of the United States. 3 During the period leading up to the Constitution’s
ratification, the power to initiate hostilities and to control the escalation of conflict
had been long understood to rest in the hands of the Executive Branch. 4
By their terms, these provisions vest full control of the military forces of the
United States in the President. The power of the President is at its zenith under the
Constitution when the President is directing military operations of the armed
forces, because the power of Commander in Chief is assigned solely to the
President. It has long been the view of this Office that the Commander-in-Chief
Clause is a substantive grant of authority to the President and that the scope of the
President’s authority to commit the armed forces to combat is very broad. See,
e.g., Memorandum for Charles W. Colson, Special Counsel to the President, from
3
See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (President has authority to deploy United
States armed forces “abroad or to any particular region”); Fleming v. Page, 50 U.S. (9 How.) 603, 615
(1850) (“As commander-in-chief, [the President] is authorized to direct the movements of the naval and
military forces placed by law at his command, and to employ them in the manner he may deem most
effectual . . . .”); Loving v. United States, 517 U.S. 748, 776 (1996) (Scalia, J., concurring in part and
concurring in judgment) (The “inherent powers” of the Commander in Chief “are clearly extensive.”);
Maul v. United States, 274 U.S. 501, 515-16 (1927) (Brandeis & Holmes, JJ., concurring) (President
“may direct any revenue cutter to cruise in any waters in order to perform any duty of the service”);
Massachusetts v. Laird, 451 F.2d 26, 32 (1st Cir. 1971) (the President has “power as Commander-in-
Chief to station forces abroad”); Authority to Use United States Military Forces in Somalia, 16 Op.
O.L.C. 6 (1992).
4
See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of
War Powers, 84 Cal. L. Rev. 167, 196-241 (1996).
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William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re:
The President and the War Power: South Vietnam and the Cambodian Sanctuaries
(May 22, 1970) (the “Rehnquist Memo”). The President’s complete discretion in
exercising the Commander-in-Chief power has also been recognized by the courts.
In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court
explained that, whether the President “in fulfilling his duties as Commander in-
Chief” had met with a situation justifying treating the southern States as belliger-
ents and instituting a blockade, was a question “to be decided by him” and which
the Court could not question, but must leave to “the political department of the
Government to which this power was entrusted.” 5
Some commentators have read the constitutional text differently. They argue
that the vesting of the power to declare war gives Congress the sole authority to
decide whether to make war. 6 This view misreads the constitutional text and
5
See Prize Cases, 67 U.S. at 670 (“He must determine what degree of force the crisis demands.”);
see also Eisentrager, 339 U.S. at 789 (“Certainly it is not the function of the Judiciary to entertain
private litigation—even by a citizen—which challenges the legality, the wisdom, or the propriety of the
Commander-in-Chief in sending our armed forces abroad or to any particular region.”); Chicago &
Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948) (“The President, both as
Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services
whose reports are not and ought not to be published to the world. It would be intolerable that courts,
without the relevant information, should review and perhaps nullify actions of the Executive taken on
information properly held secret.”); Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1561 (D.C.
Cir. 1984) (Scalia, J., dissenting), vacated by 471 U.S. 1113 (1985); Ex parte Vallandigham,
28 F. Cas.
874, 922 (C.C.S.D. Ohio 1863) (No. 16,816) (in acting “under this power where there is no express
legislative declaration, the president is guided solely by his own judgment and discretion”);
Hefleblower v. United States, 21 Ct. Cl. 228, 238 (Ct. Cl. 1886) (“The responsibility of declaring what
portions of the country were in insurrection and of declaring when the insurrection came to an end was
accorded to the President; when he declared a portion of the country to be in insurrection the judiciary
cannot try the issue and find the territory national; conversely, when the President declared the
insurrection at an end in any portion of the country, the judiciary cannot try the issue and find the
territory hostile.”); cf. United States v. Chemical Found., Inc., 272 U.S. 1, 12 (1926) (“It was peculiarly
within the province of the Commander-in-Chief to know the facts and to determine what disposition
should be made of enemy properties in order effectively to carry on the war.”).
6
See, e.g., Louis Fisher, Presidential War Power 185-206 (1995); John Hart Ely, War and Respon-
sibility: Constitutional Lessons of Vietnam and Its Aftermath 3-5 (1993); Michael J. Glennon,
Constitutional Diplomacy 80-84 (1990); Louis Henkin, Constitutionalism, Democracy, and Foreign
Affairs 109 (1990); Harold Hongju Koh, The National Security Constitution: Sharing Power After the
Iran-Contra Affair 158-61 (1990); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of
War: The War Power of Congress in History and Law (2d ed. 1989).
Other scholars, however, have argued that the President has the constitutional authority to initiate
military hostilities without prior congressional authorization. See, e.g., Edward S. Corwin, The
President: Office and Powers 1787-1984 (5th ed. 1984); Philip Bobbitt, War Powers: An Essay on
John Hart Ely’s “War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath,” 92
Mich. L. Rev. 1364 (1994); Robert H. Bork, Erosion of the President’s Power in Foreign Affairs, 68
Wash. U.L.Q. 693 (1990); Henry P. Monaghan, Presidential War-Making, 50 B.U.L. Rev. 19 (1970);
W. Michael Reisman, Some Lessons from Iraq: International Law and Democratic Politics, 16 Yale J.
Int’l L. 203 (1991); Eugene V. Rostow, “Once More unto the Breach”: The War Powers Resolution
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misunderstands the nature of a declaration of war. Declaring war is not tantamount
to making war—indeed, the Constitutional Convention specifically amended the
working draft of the Constitution that had given Congress the power to make war.
An earlier draft of the Constitution had given to Congress the power to “make”
war. When it took up this clause on August 17, 1787, the Convention voted to
change the clause from “make” to “declare.” 2 The Records of the Federal
Convention of 1787, at 318-19 (Max Farrand ed., rev. ed. 1966). A supporter of
the change argued that it would “leav[e] to the Executive the power to repel
sudden attacks.” Id. at 318. Further, other elements of the Constitution describe
“engaging” in war, which demonstrates that the Framers understood making and
engaging in war to be broader than simply “declaring” war. See U.S. Const. art. I,
§ 10, cl. 3 (“No State shall, without the Consent of Congress . . . engage in War,
unless actually invaded, or in such imminent Danger as will not admit of delay.”).
A state constitution at the time of the ratification included provisions that prohibit-
ed the governor from “making” war without legislative approval, S.C. Const. art.
XXVI (1776), reprinted in 6 The Federal and State Constitutions 3247 (Francis
Newton Thorpe ed., 1909). 7 If the Framers had wanted to require congressional
consent before the initiation of military hostilities, they knew how to write such
provisions.
Finally, the Framing generation well understood that declarations of war were
obsolete. Not all forms of hostilities rose to the level of a declared war: during the
seventeenth and eighteenth centuries, Great Britain and colonial America waged
numerous conflicts against other states without an official declaration of war. 8 As
Alexander Hamilton observed during the ratification, “the ceremony of a formal
denunciation of war has of late fallen into disuse.” The Federalist No. 25, at 165
(Alexander Hamilton) (Clinton Rossiter ed., 1961). Instead of serving as an
authorization to begin hostilities, a declaration of war was only necessary to
“perfect” a conflict under international law. A declaration served to fully trans-
form the international legal relationship between two states from one of peace to
one of war. See 1 William Blackstone, Commentaries *249-50. Given this context,
Revisited, 21 Val. U. L. Rev. 1 (1986); John C. Yoo, Kosovo, War Powers, and the Multilateral Future,
148 U. Pa. L. Rev. 1673 (2000); Yoo, 84 Cal. L. Rev. 167.
7
A subsequent version made clear “that the governor and commander-in-chief shall have no power
to commence war, or conclude peace, or enter into any final treaty” without legislative approval. S.C.
Const. art. XXXIII (1778), reprinted in 6 The Federal and State Constitutions 3255 (Francis Newton
Thorpe ed., 1909).
8
Of the eight major wars fought by Great Britain prior to the ratification of the Constitution, war
was declared only once before the start of hostilities. See Yoo, 84 Cal. L. Rev. at 214-15. See also
W. Taylor Reveley, III, War Powers of the President and Congress: Who Holds the Arrows and Olive
Branch? 55 (1981) (“[U]ndeclared war was the norm in eighteenth-century European practice, a reality
brought home to Americans when Britain’s Seven Years’ War with France began on this continent.”);
William Michael Treanor, Fame, The Founding, and The Power to Declare War, 82 Cornell L. Rev.
695, 709 (1997).
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it 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.
Constitutional Structure. Our reading of the text is reinforced by analysis of the
constitutional structure. First, it is clear that the Constitution secures all federal
executive power in the President to ensure a unity in purpose and energy in action.
“Decision, activity, secrecy, and dispatch will generally characterize the proceed-
ings of one man in a much more eminent degree than the proceedings of any
greater number.” The Federalist No. 70, at 424 (Alexander Hamilton) (Clinton
Rossiter ed., 1961). The centralization of authority in the President alone is
particularly crucial in matters of national defense, war, and foreign policy, where a
unitary executive can evaluate threats, consider policy choices, and mobilize
national resources with a speed and energy that is far superior to any other branch.
As Hamilton noted, “Energy in the executive is a leading character in the defini-
tion of good government. It is essential to the protection of the community against
foreign attacks.” Id. at 423. This is no less true in war. “Of all the cares or
concerns of government, the direction of war most peculiarly demands those
qualities which distinguish the exercise of power by a single hand.” Id. No. 74, at
447 (Alexander Hamilton). 9
Second, the Constitution makes clear that the process used for conducting
military hostilities is different from other government decisionmaking. In the area
of domestic legislation, the Constitution creates a detailed, finely wrought
procedure in which Congress plays the central role. In foreign affairs, however, the
Constitution does not establish a mandatory, detailed, Congress-driven procedure
for taking action. Rather, the Constitution vests the two branches with different
powers—the President as Commander in Chief, Congress with control over
funding and declaring war—without requiring that they follow a specific process
in making war. By establishing this framework, the Framers expected that the
process for warmaking would be far more flexible, and capable of quicker, more
decisive action, than the legislative process. Thus, the President may use his
Commander-in-Chief and executive powers to use military force to protect the
Nation, subject to congressional appropriations and control over domestic
legislation.
9
James Iredell (later an Associate Justice of the Supreme Court) argued in the North Carolina
Ratifying Convention that “[f]rom the nature of the thing, the command of armies ought to be delegated
to one person only. The secrecy, despatch, and decision, which are necessary in military operations, can
only be expected from one person.” Debate in the North Carolina Ratifying Convention, in 4 Jonathan
Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as
Recommended by the General Convention at Philadelphia in 1787, at 107 (2d ed. 1987). See also
3 Joseph Story, Commentaries on the Constitution of the United States § 1485 (1833) (“Story”) (in
military matters, “[u]nity of plan, promptitude, activity, and decision, are indispensable to success; and
these can scarcely exist, except when a single magistrate is entrusted exclusively with the power”).
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Third, the constitutional structure requires that any ambiguities in the allocation
of a power that is executive in nature—such as the power to conduct military
hostilities—must be resolved in favor of the Executive Branch. Article II, Section
1 provides that “[t]he executive Power shall be vested in a President of the United
States.” U.S. Const. art. II, § 1. By contrast, Article I’s Vesting Clause gives
Congress only the powers “herein granted.” Id. art. I, § 1. This difference in
language indicates that Congress’s legislative powers are limited to the list
enumerated in Article I, Section 8, while the President’s powers include inherent
executive powers that are unenumerated in the Constitution. To be sure, Article II
lists specifically enumerated powers in addition to the Vesting Clause, and some
have argued that this limits the “executive Power” granted in the Vesting Clause to
the powers on that list. But the purpose of the enumeration of executive powers in
Article II was not to define and cabin the grant in the Vesting Clause. Rather, the
Framers unbundled some plenary powers that had traditionally been regarded as
“executive,” assigning elements of those powers to Congress in Article I, while
expressly reserving other elements as enumerated executive powers in Article II.
So, for example, the King’s traditional power to declare war was given to Con-
gress under Article I, while the Commander-in-Chief authority was expressly
reserved to the President in Article II. Further, the Framers altered other plenary
powers of the King, such as treaties and appointments, assigning the Senate a
share in them in Article II itself.10 Thus, the enumeration in Article II marks the
points at which several traditional executive powers were diluted or reallocated.
Any other unenumerated executive powers, however, were conveyed to the
President by the Vesting Clause.
There can be little doubt that the decision to deploy military force is “execu-
tive” in nature, and was traditionally so regarded. It calls for action and energy in
execution, rather than the deliberate formulation of rules to govern the conduct of
private individuals. Moreover, the Framers understood it to be an attribute of the
executive. “The direction of war implies the direction of the common strength,”
wrote Alexander Hamilton, “and the power of directing and employing the
common strength forms a usual and essential part in the definition of the executive
authority.” The Federalist No. 74, at 447 (Alexander Hamilton) (Clinton Rossiter
ed., 1961). As a result, to the extent that the constitutional text does not explicitly
allocate the power to initiate military hostilities to a particular branch, the Vesting
Clause provides that it remain among the President’s unenumerated powers.
10
Thus, Article II’s enumeration of the Treaty and Appointments Clauses only dilutes the unitary
nature of the Executive Branch in regard to the exercise of those powers, rather than transforming them
into quasi-legislative functions. See Constitutionality of Proposed Conditions to Senate Consent to the
Interim Convention on Conservation of North Pacific Fur Seals, 10 Op. O.L.C. 12, 17 (1986)
(“Nothing in the text of the Constitution or the deliberations of the Framers suggests that the Senate’s
advice and consent role in the treaty-making process was intended to alter the fundamental constitu-
tional balance between legislative authority and executive authority.”).
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Fourth, depriving the President of the power to decide when to use military
force would disrupt the basic constitutional framework of foreign relations. From
the very beginnings of the Republic, the vesting of the executive, Commander-in-
Chief, and treaty powers in the Executive Branch has been understood to grant the
President plenary control over the conduct of foreign relations. As Secretary of
State Thomas Jefferson observed during the first Washington Administration,
“[t]he constitution has divided the powers of government into three branches [and]
has declared that the executive powers shall be vested in the president, submitting
only special articles of it to a negative by the senate.” Thomas Jefferson, Opinion
on the Powers of the Senate (1790), reprinted in 5 The Writings of Thomas
Jefferson at 161 (Paul L. Ford ed., 1895). Due to this structure, Jefferson contin-
ued, “[t]he transaction of business with foreign nations is executive altogether; it
belongs, then, to the head of that department, except as to such portions of it as are
specially submitted to the senate. Exceptions are to be construed strictly.” Id. In
defending President Washington’s authority to issue the Neutrality Proclamation,
Alexander Hamilton came to the same interpretation of the President’s foreign
affairs powers. According to Hamilton, Article II “ought . . . to be considered as
intended . . . to specify and regulate the principal articles implied in the definition
of Executive Power; leaving the rest to flow from the general grant of that power.”
Alexander Hamilton, Pacificus No. 1 (1793), reprinted in 15 The Papers of
Alexander Hamilton at 33, 39 (Harold C. Syrett et al. eds., 1969). As future Chief
Justice John Marshall famously declared a few years later, “The President is the
sole organ of the nation in its external relations, and its sole representative with
foreign nations . . . . The [executive] department . . . is entrusted with the whole
foreign intercourse of the nation . . . .” 10 Annals of Cong. 613-14 (1800). Given
the agreement of Jefferson, Hamilton, and Marshall, it has not been difficult for
the Executive Branch consistently to assert the President’s plenary authority in
foreign affairs ever since.
On the relatively few occasions where it has addressed foreign affairs, the
Supreme Court has agreed with the Executive Branch’s consistent interpretation.
Conducting foreign affairs and protecting the national security are, as the Supreme
Court has observed, “‘central’ Presidential domains.” Harlow v. Fitzgerald, 457
U.S. 800, 812 n.19 (1982). The President’s constitutional primacy flows from both
his unique position in the constitutional structure, and from the specific grants of
authority in Article II that make the President both the Chief Executive of the
Nation and the Commander in Chief. See Nixon v. Fitzgerald, 457 U.S. 731, 749-
50 (1982). Due to the President’s constitutionally superior position, the Supreme
Court has consistently “recognized ‘the generally accepted view that foreign
policy [is] the province and responsibility of the Executive.’” Dep’t of Navy v.
Egan, 484 U.S. 518, 529 (1988) (quoting Haig v.
Agee, 453 U.S. at 293-94). “The
Founders in their wisdom made [the President] not only the Commander-in-Chief
but also the guiding organ in the conduct of our foreign affairs,” possessing “vast
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powers in relation to the outside world.” Ludecke v. Watkins, 335 U.S. 160, 173
(1948). This foreign affairs power is exclusive: it is “the very delicate, plenary and
exclusive power of the President as sole organ of the federal government in the
field of international relations—a power which does not require as a basis for its
exercise an act of Congress.” United States v. Curtiss-Wright Export Corp., 299
U.S. 304, 320 (1936).
Conducting military hostilities is a central tool for the exercise of the Presi-
dent’s plenary control over the conduct of foreign policy. There can be no doubt
that the use of force protects the Nation’s security and helps it achieve its foreign
policy goals. Construing the Constitution to grant such power to another branch
could prevent the President from exercising his core constitutional responsibilities
in foreign affairs. Even in the cases in which the Supreme Court has limited
executive authority, it has also emphasized that we should not construe legislative
prerogatives to prevent the Executive Branch “from accomplishing its constitu-
tionally assigned functions.” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 443
(1977).
II.
Executive Branch Construction and Practice. The position we take here has
long represented the view of the Executive Branch and of the Department of
Justice. Attorney General (later Justice) Robert Jackson formulated the classic
statement of the Executive Branch’s understanding of the President’s military
powers in 1941:
Article II, section 2, of the Constitution provides that the Presi-
dent “shall be Commander in Chief of the Army and Navy of the
United States.” By virtue of this constitutional office he has supreme
command over the land and naval forces of the country and may
order them to perform such military duties as, in his opinion, are
necessary or appropriate for the defense of the United States. These
powers exist in time of peace as well as in time of war.
....
Thus the President’s responsibility as Commander in Chief
embraces the authority to command and direct the armed forces in
their immediate movements and operations designed to protect the
security and effectuate the defense of the United States. . . . [T]his
authority undoubtedly includes the power to dispose of troops and
equipment in such manner and on such duties as best to promote the
safety of the country.
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Training of British Flying Students in the United States, 40 Op. Att’y Gen. 58, 61-
62 (1941).11 Other Attorneys General have defended similar accounts of the
President’s constitutional powers and duties, particularly in times of unforeseen
emergencies.
Attorney General William P. Barr, quoting the opinion of Attorney General
Jackson just cited, advised the President in 1992 that “[y]ou have authority to
commit troops overseas without specific prior Congressional approval ‘on
missions of good will or rescue, or for the purpose of protecting American lives or
property or American interests.’” Authority to Use United States Military Forces
in Somalia, 16 Op. O.L.C. 6, 6 (1992) (citation omitted).
Attorney General (later Justice) Frank Murphy, though declining to define
precisely the scope of the President’s independent authority to act in emergencies
or states of war, stated that:
the Executive has powers not enumerated in the statutes—powers
derived not from statutory grants but from the Constitution. It is uni-
versally recognized that the constitutional duties of the Executive
carry with them the constitutional powers necessary for their proper
performance. These constitutional powers have never been specifi-
cally defined, and in fact cannot be, since their extent and limitations
are largely dependent upon conditions and circumstances. . . . The
right to take specific action might not exist under one state of facts,
while under another it might be the absolute duty of the Executive to
take such action.
Request of the Senate for an Opinion as to the Powers of the President “In Emer-
gency or State of War,” 39 Op. Att’y Gen. 343, 347-48 (1939).
Attorney General Thomas Gregory opined in 1914 that “[i]n the preservation of
the safety and integrity of the United States and the protection of its responsibili-
ties and obligations as a sovereignty, [the President’s] powers are broad.” Censor-
ship of Radio Stations, 30 Op. Att’y Gen. 291, 292 (1914).
Finally, in 1898, Acting Attorney General John K. Richards wrote:
The preservation of our territorial integrity and the protection of our
foreign interests is intrusted, in the first instance, to the President. . . .
In the protection of these fundamental rights, which are based upon
the Constitution and grow out of the jurisdiction of this nation over
11
At the time Attorney General Jackson delivered his opinion, the United States was a neutral, and
thus his conclusions about the President’s powers did not rest on any special considerations that might
apply in time of war. Although he stated that he was “inclined to the opinion” that a statute (the Lend-
Lease Act) authorized the decision under review, Jackson expressly based his conclusion on the
President’s constitutional authority. 40 Op. Att’y Gen. at 61.
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its own territory and its international rights and obligations as a dis-
tinct sovereignty, the President is not limited to the enforcement of
specific acts of Congress. [The President] must preserve, protect, and
defend those fundamental rights which flow from the Constitution
itself and belong to the sovereignty it created.
Foreign Cables, 22 Op. Att’y Gen. 13, 25-26 (1898). Acting Attorney General
Richards cited, among other judicial decisions, Cunningham v. Neagle, 135 U.S. 1,
64 (1890), in which the Supreme Court stated that the President’s power to enforce
the laws of the United States “include[s] the rights, duties and obligations growing
out of the constitution itself, our international relations, and all the protection
implied by the nature of the government under the constitution.”
Opinions of the Office of Legal Counsel. Our Office has taken the position in
recent Administrations, including those of Presidents Clinton, Bush, Reagan,
Carter, and Nixon, that the President may unilaterally deploy military force in
order to protect the national security and interests of the United States.
In 1995, we opined that the President, “acting without specific statutory author-
ization, lawfully may introduce United States ground troops into Bosnia and
Herzegovina . . . to help the North Atlantic Treaty Organization . . . ensure
compliance with the recently negotiated peace agreement.” Proposed Deployment
of United States Armed Forces in Bosnia and Herzegovina, 19 Op. O.L.C. 327,
327 (1995) (the “Bosnia Opinion”). We interpreted the WPR to “lend[] support to
the . . . conclusion that the President has authority, without specific statutory
authorization, to introduce troops into hostilities in a substantial range of circum-
stances.” Id. at 335.
In Deployment of United States Armed Forces into Haiti,
18 Op. O.L.C. 173
(1994), we advised that the President had the authority unilaterally to deploy some
20,000 troops into Haiti. We relied in part on the structure of the WPR, which we
argued “makes sense only if the President may introduce troops into hostilities or
potential hostilities without prior authorization by the Congress.” Id. at 175-76.
We further argued that “in establishing and funding a military force that is capable
of being projected anywhere around the globe, Congress has given the President,
as Commander in Chief, considerable discretion in deciding how that force is to be
deployed.” Id. at 177. We also cited and relied upon the past practice of the
Executive Branch in undertaking unilateral military interventions:
In 1940, after the fall of Denmark to Germany, President Franklin
Roosevelt ordered United States troops to occupy Greenland, a Dan-
ish possession in the North Atlantic of vital strategic interest to the
United States. . . . Congress was not consulted or even directly
informed. . . . Later, in 1941, the President ordered United States
troops to occupy Iceland, an independent nation, pursuant to an
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President’s Authority to Conduct Military Operations Against Terrorists
agreement between himself and the Prime Minister of Iceland. The
President relied upon his authority as Commander in Chief, and noti-
fied Congress only after the event. . . . More recently, in 1989, at the
request of President Corazon Aquino, President Bush authorized mil-
itary assistance to the Philippine government to suppress a coup
attempt.
Id. at 178.
In Authority to Use United States Military Forces in Somalia,
16 Op. O.L.C. 6
(1992), our Office advised that the President had the constitutional authority to
deploy United States Armed Forces into Somalia in order to assist the United
Nations in ensuring the safe delivery of relief to distressed areas of that country.
We stated that “the President’s role under our Constitution as Commander in Chief
and Chief Executive vests him with the constitutional authority to order United
States troops abroad to further national interests such as protecting the lives of
Americans overseas.” Id. at 8. Citing past practice (further discussed below), we
pointed out that
[f]rom the instructions of President Jefferson’s Administration to
Commodore Richard Dale in 1801 to “chastise” Algiers and Tripoli
if they continued to attack American shipping, to the present, Presi-
dents have taken military initiatives abroad on the basis of their con-
stitutional authority. . . . Against the background of this repeated past
practice under many Presidents, this Department and this Office have
concluded that the President has the power to commit United States
troops abroad for the purpose of protecting important national inter-
ests.
Id. at 9 (citations omitted).
In Overview of the War Powers Resolution, 8 Op. O.L.C. 271, 275 (1984), we
noted that “[t]he President’s authority to deploy armed forces has been exercised
in a broad range of circumstances [in] our history.”
In Presidential Power to Use the Armed Forces Abroad Without Statutory
Authorization, 4A Op. O.L.C. 185, 187 (1980), we stated that
[o]ur history is replete with instances of presidential uses of military
force abroad in the absence of prior congressional approval. This
pattern of presidential initiative and congressional acquiescence may
be said to reflect the implicit advantage held by the executive over
the legislature under our constitutional scheme in situations calling
for immediate action. Thus, constitutional practice over two centu-
ries, supported by the nature of the functions exercised and by the
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few legal benchmarks that exist, evidences the existence of broad
constitutional power.
In light of that understanding, we advised that the President had independent
constitutional authority unilaterally to order “(1) deployment abroad at some risk
of engagement—for example, the current presence of the fleet in the Persian Gulf
region; (2) a military expedition to rescue the hostages or to retaliate against Iran if
the hostages are harmed; (3) an attempt to repel an assault that threatens our vital
interests in that region.” Id. at 185-86. See also Presidential Powers Relating to
the Situation in Iran, 4A Op. O.L.C. 115, 121 (1979) (“It is well established that
the President has the constitutional power as Chief Executive and Commander-in-
Chief to protect the lives and property of Americans abroad. This understanding is
reflected in judicial decisions . . . and recurring historic practice which goes back
to the time of Jefferson.”).
Finally, in the Rehnquist Memo, we concluded that the President as Comm-
ander in Chief had the authority “to commit military forces of the United States to
armed conflict . . . to protect the lives of American troops in the field.” Id. at 8.
Judicial Construction. Judicial decisions since the beginning of the Republic
confirm the President’s constitutional power and duty to repel military action
against the United States through the use of force, and to take measures to deter
the recurrence of an attack. As Justice Joseph Story said long ago, “[i]t may be fit
and proper for the government, in the exercise of the high discretion confided to
the executive, for great public purposes, to act on a sudden emergency, or to
prevent an irreparable mischief, by summary measures, which are not found in the
text of the laws.” The Apollon, 22 U.S. (9 Wheat.) 362, 366-67 (1824). The
Constitution entrusts the “power [to] the executive branch of the government to
preserve order and insure the public safety in times of emergency, when other
branches of the government are unable to function, or their functioning would
itself threaten the public safety.” Duncan v. Kahanamoku, 327 U.S. 304, 335
(1946) (Stone, C.J., concurring).
If the President is confronted with an unforeseen attack on the territory and
people of the United States, or other immediate, dangerous threat to American
interests and security, the courts have affirmed that it is his constitutional respon-
sibility to respond to that threat with whatever means are necessary, including the
use of military force abroad. See, e.g., Prize Cases, 67 U.S. at 635 (“If a war be
made by invasion of a foreign nation, the President is not only authorized but
bound to resist force by force . . . without waiting for any special legislative
authority.”); Kahanamoku, 327 U.S. at 336 (Stone, C.J., concurring) (“Executive
has broad discretion in determining when the public emergency is such as to give
rise to the necessity” for emergency measures); United States v. Smith, 27 F. Cas.
1192, 1230 (C.C.D.N.Y. 1806) (No. 16,342) (Paterson, Circuit Justice) (regardless
of statutory authorization, it is “the duty . . . of the executive magistrate . . . to
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President’s Authority to Conduct Military Operations Against Terrorists
repel an invading foe”);12 Mitchell v. Laird, 488 F.2d 611, 613 (D.C. Cir. 1973)
(“there are some types of war which without Congressional approval, the President
may begin to wage: for example, he may respond immediately without such
approval to a belligerent attack”);13 see also Campbell v. Clinton, 203 F.3d 19, 27
(D.C. Cir.) (Silberman, J. concurring) (“[T]he President has independent authority
to repel aggressive acts by third parties even without specific statutory authoriza-
tion.”), cert. denied, 531 U.S. 815 (2000);
id. at 40 (Tatel, J., concurring) (“[T]he
President, as Commander in Chief, possesses emergency authority to use military
force to defend the nation from attack without obtaining prior congressional
approval.”); Story, supra note 9, § 1485 (“[t]he command and application of the
public force . . . to maintain peace, and to resist foreign invasion” are executive
powers).
III.
The historical practice of all three branches confirms the lessons of the consti-
tutional text and structure. The normative role of historical practice in constitu-
tional law, and especially with regard to separation of powers, is well settled.14
Both the Supreme Court and the political branches have often recognized that
governmental practice plays a highly significant role in establishing the contours
of the constitutional separation of powers: “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 § 1 of Art. II.” Youngstown Sheet & Tube Co., 343 U.S. at 610-11
(Frankfurter, J., concurring). Indeed, as the Court has observed, the role of practice
in fixing the meaning of the separation of powers is implicit in the Constitution
itself: “‘the Constitution . . . contemplates that practice will integrate the dispersed
powers into a workable government.’” Mistretta v. United States, 488 U.S. 361,
12
Justice Paterson went on to remark that in those circumstances “it would I apprehend, be not only
lawful for the president to resist such invasion, but also to carry hostilities into the enemy’s own
country.” 27 F. Cas. at 1230.
13
The court further observed that “in a grave emergency [the President] may, without Congression-
al approval, take the initiative to wage war. . . . In such unusual situations necessity confers the
requisite authority upon the President. Any other construction of the Constitution would make it self-
destructive.” 488 F.2d at 613-14. Accord Massachusetts v.
Laird, 451 F.2d at 31 (“[t]he executive may
without Congressional participation repel attack”).
14
As the Supreme Court has noted, “the decisions of the Court in th[e] area [of foreign affairs] have
been rare, episodic, and afford little precedential value for subsequent cases.” Dames & Moore, 453
U.S. at 661. In particular, the difficulty the courts experience in addressing “the broad range of vitally
important day-to-day questions regularly decided by Congress or the Executive” with respect to foreign
affairs and national security makes the judiciary “acutely aware of the necessity to rest [judicial]
decision[s] on the narrowest possible ground capable of deciding the case.” Id. at 660-61. Historical
practice and the ongoing tradition of Executive Branch constitutional interpretation therefore play an
especially important role in this area.
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381 (1989) (citation omitted). In addition, governmental practice enjoys significant
weight in constitutional analysis for practical reasons, on “the basis of a wise and
quieting rule that, in determining . . . the existence of a power, weight shall be
given to the usage itself—even when the validity of the practice is the subject of
investigation.” United States v. Midwest Oil Co., 236 U.S. 459, 473 (1915).
The role of practice is heightened in dealing with issues affecting foreign
affairs and national security, where “the Court has been particularly willing to rely
on the practical statesmanship of the political branches when considering constitu-
tional questions.” Whether Uruguay Round Agreements Required Ratification as a
Treaty, 18 Op. O.L.C. 232, 234 (1994). “The persistence of these controversies
(which trace back to the eighteenth century), and the nearly complete absence of
judicial decisions resolving them, underscore the necessity of relying on congress-
ional precedent to interpret the relevant constitutional provisions.” Id. at 236.
Accordingly, we give considerable weight to the practice of the political branches
in trying to determine the constitutional allocation of warmaking powers between
them.
The historical record demonstrates that the power to initiate military hostilities,
particularly in response to the threat of an armed attack, rests exclusively with the
President. As the Supreme Court has observed, “[t]he United States frequently
employs Armed Forces outside this country—over 200 times in our history—for
the protection of American citizens or national security.” United States v. Verdu-
go-Urquidez, 494 U.S. 259, 273 (1990). On at least 125 such occasions, the
President acted without prior express authorization from Congress. See Bosnia
Opinion, 19 Op. O.L.C. at 331. Such deployments, based on the President’s
constitutional authority alone, have occurred since the Administration of George
Washington. See David P. Currie, The Constitution in Congress: Substantive
Issues in the First Congress, 1789-1791, 61 U. Chi. L. Rev. 775, 816 (1994)
(“[B]oth Secretary [of War] Knox and [President] Washington himself seemed to
think that this [Commander-in-Chief] authority extended to offensive operations
taken in retaliation for Indian atrocities.”) (quoted in Bosnia Opinion, 19 Op.
O.L.C. at 331 n.4). Perhaps the most significant deployment without specific
statutory authorization took place at the time of the Korean War, when President
Truman, without prior authorization from Congress, deployed United States troops
in a war that lasted for over three years and caused over 142,000 American
casualties. See Bosnia Opinion, 19 Op. O.L.C. at 331-32 n.5.
Recent deployments ordered solely on the basis of the President’s constitutional
authority have also been extremely large, representing a substantial commitment
of the Nation’s military personnel, diplomatic prestige, and financial resources. On
at least one occasion, such a unilateral deployment has constituted full-scale war.
On March 24, 1999, without any prior statutory authorization and in the absence of
an attack on the United States, President Clinton ordered hostilities to be initiated
against the Republic of Yugoslavia. The President informed Congress that, in the
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initial wave of air strikes, “United States and NATO forces have targeted the
[Yugoslavian] government’s integrated air defense system, military and security
police command and control elements, and military and security police facilities
and infrastructure. . . . I have taken these actions pursuant to my constitutional
authority to conduct U.S. foreign relations and as Commander in Chief and Chief
Executive.” Letter to Congressional Leaders Reporting on Airstrikes Against
Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro),
1 Pub. Papers of Pres. William J. Clinton 459, 459-60 (Mar. 26, 1999). Bombing
attacks against targets in both Kosovo and Serbia ended on June 10, 1999,
seventy-nine days after the war began. More than 30,000 United States military
personnel participated in the operations; some 800 U.S. aircraft flew more than
20,000 sorties; more than 23,000 bombs and missiles were used. As part of the
peace settlement, NATO deployed some 50,000 troops into Kosovo, 7,000 of them
American.15 In a News Briefing on June 10, 1999, Secretary of Defense William S.
Cohen summarized the effects of the campaign by saying,
[t]hree months ago Yugoslavia was a heavily armed country with a
significant air defense system. We reduced that defense system threat
by destroying over 80 percent of Yugoslavia’s modern aircraft fight-
ers and strategic suface-to-air missiles. NATO destroyed a signifi-
cant share of the infrastructure Yugoslavia used to support[] its mili-
tary with, we reduced [its] capacity to make ammunition by two-
thirds, and we eliminated all of its oil refining capacity and more
than 40 percent of its military fuel supplies. Most important, we
severely crippled the military forces in Kosovo by destroying more
than 50 percent of the artillery and more than one-third of the
armored vehicles.1 6
General Shelton of the Joint Chiefs of Staff reported that “about half of [Yugosla-
via’s] defense industry has either been damaged or destroyed. . . . [A]viation, 70
percent; armored vehicle production, 40 [percent]; petroleum refineries, 100
percent down; explosive production, about 50 percent; and 65 percent of [its]
ammunition. . . . For the most part Belgrade is a city that’s got about probably 70
15
See Campbell v. Clinton, 203 F.3d at 40 (Tatel, J., concurring) (quoting testimony of Secretary of
Defense Cohen that “‘[w]e’re certainly engaged in hostilities [in Yugoslavia], we’re engaged in
combat’”); Exec. Order No. 13119, 64 Fed. Reg. 18,797 (Apr. 16, 1999) (designating March 24, 1999,
as “the date of the commencement of combatant activities” in Yugoslavia); John C. Yoo, UN Wars, US
War Powers, 1 Chi. J. Int’l L. 355 (2000).
16
Office of the Assistant Secretary of Defense (Public Affairs), DoD News Briefing (June 10, 1999,
4:05 PM) (remarks of Secretary of Defense Cohen), available at http://www.defense.gov/transcripts/
transcript.aspx?transcriptid=487 (last visited Apr. 27, 2012).
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percent without [electrical] power.”17 A report by General Ryan, Air Force Chief
of Staff, stated that
Serbia’s air force is essentially useless and its air defenses are
dangerous but ineffective. Military armament production is
destroyed. Military supply areas are under siege. Oil refinement has
ceased and petroleum storage is systematically being destroyed.
Electricity is sporadic, at best. Major transportation routes are cut.
NATO aircraft are attacking with impunity throughout the coun-
try.18
Estimates near the time placed the number of Yugoslav military casualties at
between five and ten thousand.19 In recent decades, no President has unilaterally
deployed so much force abroad.
Other recent unilateral deployments have also been significant in military,
foreign policy, and financial terms. Several such deployments occurred in the
Balkans in the mid-1990s.2 0 In December 1995, President Clinton ordered the
deployment of 20,000 United States troops to Bosnia to implement a peace
settlement. In February 1994, sixty United States warplanes conducted airstrikes
against Yugoslav targets. In 1993, United States warplanes were sent to enforce a
no-fly zone over Bosnia; in the same year, the President despatched United States
troops to Macedonia as part of a United Nations peacekeeping operation.
Major recent deployments have also taken place in Central America and in the
Persian Gulf. In 1994, President Clinton ordered some 20,000 United States troops
to be deployed into Haiti, again without prior statutory authorization from
Congress, in reliance solely upon his Article II authority. See Deployment of
United States Armed Forces into Haiti, 18 Op. O.L.C. 173 (1994). On August 8,
1990, in response to the Iraqi invasion of Kuwait and the consequent threat to
Saudi Arabia, President Bush ordered the deployment of substantial forces into
Saudi Arabia in Operation Desert Shield. The forces were equipped for combat
and included two squadrons of F-15 aircraft and a brigade of the 82d Airborne
Division; the deployment eventually grew to several hundred thousand. The
President informed Congress that he had taken these actions “pursuant to my
constitutional authority to conduct our foreign relations and as Commander in
Chief.” Letter to Congressional Leaders on the Deployment of United States
Armed Forces to Saudi Arabia and the Middle East, 2 Pub. Papers of Pres.
17
Id. (remarks of General Shelton).
18
General Michael E. Ryan, Air Power Is Working in Kosovo, Wash. Post, June 4, 1999, at A35.
19
See Nick Cook, War of Extremes, Jane’s Defence Weekly, July 7, 1999, at 21.
20
See Yoo, UN Wars, 1 Chi. J. Int’l L. at 359.
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George Bush 1116, 1116 (Aug. 9, 1990). President Bush also deployed some
15,000 troops into Panama in December, 1990, for the purpose (among others) of
protecting Americans living in Panama. See Address to the Nation Announcing
United States Military Action in Panama, 2 Pub. Papers of Pres. George Bush
1722 (Dec. 20, 1989); see generally Abraham D. Sofaer, The Legality of the
United States Action in Panama, 29 Colum. J. Transnat’l L. 281 (1991).
Further, when Congress has in fact authorized deployments of troops in hostili-
ties, past Presidents have taken the position that such legislation, although
welcome, was not constitutionally necessary. For example, in signing Public Law
102-01, 105 Stat. 3 (1991), authorizing the use of military force in Operation
Desert Storm against Iraq, President Bush stated that “my request for congression-
al support did not, and my signing this resolution does not, constitute any change
in the longstanding positions of the executive branch on either the President’s
constitutional authority to use the Armed Forces to defend vital U.S. interests or
the constitutionality of the War Powers Resolution.” Statement on Signing the
Resolution Authorizing the Use of Military Force Against Iraq, 1 Pub. Papers of
Pres. George Bush 40, 40 (Jan. 14, 1991).21 Similarly, President John F. Kennedy
stated on September 13, 1962, that congressional authorization for a naval
blockade of Cuba was unnecessary, maintaining that “I have full authority now to
take such action.” The President’s News Conference of September 13, 1962, Pub.
Papers of Pres. John F. Kennedy 674, 674 (1962). And in a report to the American
people on October 22, 1962, President Kennedy asserted that he had ordered the
blockade “under the authority entrusted to me by the Constitution as endorsed by
the resolution of the Congress.” Radio and Television Report to the American
People on the Soviet Arms Buildup in Cuba, Pub. Papers of Pres. John F.
Kennedy 806, 807 (Oct. 22, 1962) (emphasis added).22 Thus, there is abundant
21
Further, in a press conference on January 9, 1991, President Bush was asked if he believed that he
needed congressional authorization in order to begin offensive operations against Iraq. He answered, “I
don’t think I need it. I think Secretary Cheney expressed it very well the other day. There are different
opinions on either side of this question, but Saddam Hussein should be under no question on this: I feel
that I have the authority to fully implement the United Nations resolutions.” The President’s News
Conference on the Persian Gulf Crisis, 1 Pub. Papers of Pres. George Bush 17, 20 (Jan. 9, 1991).
22
An unsigned, unaddressed opinion in this Office’s files, entitled Blockade of Cuba, states that
“the President, in the exercise of his constitutional power as Commander-in-Chief, can order a
blockade without prior Congressional sanction and without a declaration of war by Congress.” Id. at 9
(Oct. 19, 1962). Thus, the writers of the memorandum (presumably, either this Office or the State
Department’s Office of the Legal Adviser) determined that no congressional authorization either
existed or was necessary for the blockade ordered by President Kennedy.
Editor’s Note: Prior to the book publication of this opinion, we consulted with officials at the
Department of State to determine whether they had any record or evidence of authorship of the
Blockade of Cuba memorandum. Although they were unable to locate a copy of the memorandum
itself, they pointed us to declassified records of a meeting held on October 19, 1962 (the same date as
the memorandum) and attended by a number of top-level administration officials (including Secretary
of State Dean Rusk, Attorney General Robert Kennedy, and National Security Advisor McGeorge
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precedent, much of it from recent Administrations, for the deployment of military
force abroad, including the waging of war, on the basis of the President’s sole
constitutional authority.
Several recent precedents stand out as particularly relevant to the situation at
hand, where the conflict is with terrorists. The first and most relevant precedent is
also the most recent: the military actions that President William J. Clinton ordered
on August 20, 1998, against terrorist sites in Afghanistan and Sudan. The second
is the strike on Iraqi Intelligence Headquarters that President Clinton ordered on
June 26, 1993. The third is President Ronald Reagan’s action on April 14, 1986,
ordering United States armed forces to attack selected targets at Tripoli and
Benghazi, Libya.
A.
On August 20, 1998, President Clinton ordered the Armed Forces to strike at
terrorist-related facilities in Afghanistan and Sudan “because of the threat they
present to our national security.” Remarks in Martha’s Vineyard, Massachusetts,
on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 Pub.
Papers of Pres. William J. Clinton 1460, 1460 (Aug. 20, 1998). The President
stated that the purpose of the operation was “to strike at the network of radical
groups affiliated with and funded by Usama bin Ladin, perhaps the preeminent
organizer and financier of international terrorism in the world today.” Address to
the Nation on Military Action Against Terrorist Sites in Afghanistan and Sudan,
2 Pub. Papers of Pres. William J. Clinton 1460, 1460 (Aug. 20, 1998). The strike
was ordered in retaliation for the bombings of United States Embassies in Kenya
and Tanzania, in which bin Laden’s organization and groups affiliated with it were
believed to have played a key role and which had caused the deaths of some 12
Americans and nearly 300 Kenyans and Tanzanians, and in order to deter later
terrorist attacks of a similar kind against United States nationals and others. In his
remarks at Martha’s Vineyard, President Clinton justified the operation as follows:
Bundy). See U.S. Dep’t of State, Foreign Relations of the United States, 1961-1963: Volume XI, Cuban
Missile Crisis and Aftermath, doc. 31 (Edward C. Keefer et al., eds., 1998), available at http://history.
state.gov/historicaldocuments/frus1961-63v11/d31 (last visited Aug. 3, 2012) (notes of October 19,
1962 meeting). These records suggest that the memorandum may have been prepared by Leonard
Meeker, Deputy Legal Adviser for the Department of State, perhaps in consultation with Nicholas
Katzenbach, Deputy Attorney General and former Assistant Attorney General for the Office of Legal
Counsel. Mr. Meeker kept notes of the October 19 meeting, which indicate that he presented legal
analysis paralleling that in the Blockade of Cuba memorandum and concluding that the President could
respond militarily to the Soviet missile threat without a declaration of war. Mr. Katzenbach also spoke
at the meeting and concurred with Mr. Meeker that “the President had ample constitutional and
statutory authority to take any needed military measures.” Id.
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I ordered this action for four reasons: first, because we have con-
vincing evidence these groups played the key role in the Embassy
bombings in Kenya and Tanzania; second, because these groups
have executed terrorist attacks against Americans in the past; third,
because we have compelling information that they were planning
additional terrorist attacks against our citizens and others with the
inevitable collateral casualties we saw so tragically in Africa; and
fourth, because they are seeking to acquire chemical weapons and
other dangerous weapons.
Remarks in Martha’s Vineyard, 2 Pub. Papers of Pres. William J. Clinton at 1460
(1998). In his Address to the Nation on the same day, the President made clear that
the strikes were aimed not only at bin Laden’s organization, but at other terrorist
groups thought to be affiliated with it, and that the strikes were intended as
retribution for other incidents caused by these groups, and not merely the then-
recent bombings of the two United States embassies. Referring to the past acts of
the interlinked terrorist groups, he stated:
Their mission is murder and their history is bloody. In recent
years, they killed American, Belgian, and Pakistani peacekeepers in
Somalia. They plotted to assassinate the President of Egypt and the
Pope. They planned to bomb six United States 747’s over the Pacif-
ic. They bombed the Egyptian Embassy in Pakistan. They gunned
down German tourists in Egypt.
Address to the Nation, 2 Pub. Papers of Pres. William J. Clinton at 1460-61
(1998). Furthermore, in explaining why military action was necessary, the
President noted that “law enforcement and diplomatic tools” to combat terrorism
had proved insufficient, and that “when our very national security is chal-
lenged . . . we must take extraordinary steps to protect the safety of our citizens.”
Id. at 1461. Finally, the President made plain that the action of the two targeted
countries in harboring terrorists justified the use of military force on their territory:
“The United States does not take this action lightly. Afghanistan and Sudan have
been warned for years to stop harboring and supporting these terrorist groups. But
countries that persistently host terrorists have no right to be safe havens.” Id.
The terrorist incidents of September 11, 2001, were surely far graver a threat to
the national security of the United States than the 1998 attacks on our embassies
(however appalling those events were). The President’s power to respond militari-
ly to the later attacks must be correspondingly broader. Nonetheless, President
Clinton’s action in 1998 illustrates some of the breadth of the President’s power to
act in the present circumstances.
First, President Clinton justified the targeting of particular groups on the basis
of what he characterized as “convincing” evidence of their involvement in the
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embassy attacks. While that is not a standard of proof appropriate for a criminal
trial, it is entirely appropriate for military and political decisionmaking. Second,
the President targeted not merely one particular group or leader, but a network of
affiliated groups. Moreover, he ordered the action not only because of particular
attacks on United States embassies, but because of a pattern of terrorist activity,
aimed at both Americans and non-Americans, that had unfolded over several
years. Third, the President explained that the military action was designed to deter
future terrorist incidents, not only to punish past ones. Fourth, the President
specifically justified military action on the territory of two foreign states because
their governments had “harbor[ed]” and “support[ed]” terrorist groups for years,
despite warnings from the United States.
B.
On June 26, 1993, President Clinton ordered a Tomahawk cruise missile strike
on Iraqi Intelligence Service (the “IIS”) headquarters in Baghdad. The IIS had
planned an unsuccessful attempt to assassinate former President Bush in Kuwait in
April, 1993. Two United States Navy surface ships launched a total of 23 missiles
against the IIS center.
In a letter to Congress, the President referred to the failed assassination attempt
and stated that “[t]he evidence of the Government of Iraq’s violence and terrorism
demonstrates that Iraq poses a continuing threat to United States nationals.” Letter
to Congressional Leaders on the Strike on Iraqi Intelligence Headquarters, 1 Pub.
Papers of Pres. William J. Clinton 940, 940 (June 28, 1993). He based his
authority to order a strike against the Iraqi government’s intelligence command
center on “my constitutional authority with respect to the conduct of foreign
relations and as Commander in Chief,” as well as on the Nation’s inherent right of
self-defense. Id.
President Clinton’s order was designed in part to deter and prevent future ter-
rorist attacks on the United States—and most particularly future assassination
attempts on former President Bush. Although the assassination attempt had been
frustrated by the arrest of sixteen suspects before any harm was done, “nothing
prevented Iraq from directing a second—possibly successful—attempt on Bush’s
life. Thus, the possibility of another assassination plot was ‘hanging threateningly
over [Bush’s] head’ and was therefore imminent. By attacking the Iraqi Intelli-
gence Service, the United States hoped to prevent and deter future attempts to kill
Bush.”23
23
Robert F. Teplitz, Taking Assassination Attempts Seriously: Did the United States Violate Inter-
national Law in Forcefully Responding to the Iraqi Plot to Kill George Bush?, 28 Cornell Int’l L.J.
569, 609 (1995) (citation omitted).
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C.
On April 14, 1986, President Ronald Reagan, acting on his independent author-
ity, ordered United States armed forces to engage in military action against the
government of Colonel Gadhafi of Libya.24 Thirty-two American aircraft attacked
selected targets at Tripoli and Benghazi, Libya. Libyan officials reported thirty-
seven people killed and an undetermined number injured. More than sixty tons of
ordnance were used during the attack.
For some time Libya had supported terrorist groups and organizations and
indeed had itself ordered direct terrorist attacks on the United States.
Under Gaddafi, Libya has declared its support of “national liberation
movements” and has allegedly financed and trained numerous terror-
ist groups and organizations, including Palestinian radicals, Leba-
nese leftists, Columbia’s M-19 guerrillas, the Irish Republican
Army, anti-Turkish Armenians, the Sandinistas in Nicaragua, Mus-
lim rebels in the Philippines, and left-wing extremists in Europe and
Japan.25
It had harbored a variety of terrorists, including Abu Nidal and the three surviving
members of the Black September group that had killed eleven Israeli athletes at the
1972 Munich Olympic Games.26 Libya’s attacks on the United States included the
murder of two United States diplomats in Khartoum (1973), the attempted
assassination of Secretary of State Kissinger (1973), the burning of the United
States Embassy in Tripoli (1979), the planned assassination of President Reagan,
Secretary of State Haig, Secretary of Defense Weinberger, and Ambassador to
Italy Robb (1981), and the hijacking of T.W.A. flight 847 (1985).27 Libya had also
been linked to terrorist events close to the time of the April, 1986, airstrike in
which Americans and others had lost their lives. In January, 1986, American
intelligence tied Libya to the December 27, 1985, bombings at the Rome and
Vienna airports in which nineteen people, including 5 Americans, had died, and
one hundred and twelve persons had been injured.
The particular event that triggered the President’s military action had occurred
on April 5, 1986, when a bomb exploded in the “Labelle,” a Berlin discotheque
frequented by U.S. military personnel. The blast killed three people (two Ameri-
cans) and injured two hundred and thirty others (including seventy-nine Ameri-
24
See generally Wallace F. Warriner, U.S.M.C., The Unilateral Use of Coercion Under Interna-
tional Law: A Legal Analysis of the United States Raid on Libya on April 14, 1986, 37 Naval L. Rev.
49 (1988); Teplitz, 28 Cornell Int’l L. J. at 583-86.
25
Teplitz, 28 Cornell Int’l L. J. at 583 n.112.
26
See id.
27
See id. at 583 n.113.
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cans). Intelligence reports indicated that the bombing was planned and executed
under the direct orders of the Government of Libya. The United States Ambassa-
dor to the United Nations stated that there was “direct, precise, and irrefutable
evidence that Libya bears responsibility” for the bombing of the discotheque; that
the Labelle incident was “only the latest in an ongoing pattern of attacks by Libya”
against the United States and its allies; and that the United States had made
“repeated and protracted efforts to deter Libya from its ongoing attacks,” including
“quiet diplomacy, public condemnation, economic sanctions and demonstrations
of military force.” U.N. SCOR, 2674th mtg. at 13, 14, U.N. Doc. S/PV.2674 (prov.
ed. Apr. 15, 1986).
Like the two unilateral presidential actions discussed above, President Reagan’s
decision to use armed force in response to a terrorist attack on United States
military personnel illustrates that the President has independent constitutional
authority to use such force in the present circumstances.
IV.
Our analysis to this point has surveyed the views and practice of the Executive
and Judicial Branches. In two enactments, the War Powers Resolution and the
recent Joint Resolution, Congress has also addressed the scope of the President’s
independent constitutional authority. We think these two statutes demonstrate
Congress’s acceptance of the President’s unilateral war powers in an emergency
situation like that created by the September 11 incidents.
Furthermore, the President can be said to be acting at the apogee of his powers
if he deploys military force in the present situation, for he is operating both under
his own Article II authority and with the legislative support of Congress. Under
the analysis outlined by Justice Jackson in Youngstown Sheet & Tube Co. (and
later followed and interpreted by the Court in Dames & Moore), the President’s
power in this case would be “at its maximum,” 343 U.S. at 635 (Jackson, J.,
concurring), because the President would be acting pursuant to an express
congressional authorization. He would thus be clothed with “all [authority] that he
possesses in his own right plus all that Congress can delegate,” id., in addition to
his own broad powers in foreign affairs under Article II of the Constitution.
The War Powers Resolution. Section 2(c) of the WPR, reads as follows:
The constitutional powers of the President as Commander-in-Chief
to introduce United States Armed Forces into hostilities, or into situ-
ations where imminent involvement in hostilities is clearly indicated
by the circumstances, are exercised only pursuant to (1) a declaration
of war, (2) specific statutory authorization, or (3) a national emer-
gency created by attack upon the United States, its territories or pos-
sessions, or its armed forces.
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President’s Authority to Conduct Military Operations Against Terrorists
50 U.S.C. § 1541(c) (2000) (emphasis added).
The Executive Branch consistently “has taken the position from the very begin-
ning that section 2(c) of the WPR does not constitute a legally binding definition
of Presidential authority to deploy our armed forces.” Overview of the War Powers
Resolution, 8 Op. O.L.C. at 274.28 Moreover, as our Office has noted, “even the
defenders of the WPR concede that this declaration [in section 2(c)]—found in the
‘Purpose and Policy’ section of the WPR—either is incomplete or is not meant to
be binding.” Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C.
at 176; accord Bosnia
Opinion, 19 Op. O.L.C. at 335 (“The executive branch has
traditionally taken the position that the President’s power to deploy armed forces
into situations of actual or indicated hostilities is not restricted to the three
categories specifically marked out by the Resolution.”); Presidential Powers
Relating to the Situation in Iran, 4A Op. O.L.C. at 121 (“[T]he Resolution’s policy
statement is not a comprehensive or binding formulation of the President’s powers
as Commander-in-Chief.”). Nonetheless, section 2(c)(3) correctly identifies one,
but by no means the only, presidential authority to deploy military forces into
hostilities.29 In the present circumstances, the statute signifies Congress’s recogni-
tion that the President’s constitutional authority alone would enable him to take
military measures to combat the organizations or groups responsible for the
September 11 incidents, together with any governments that may have harbored or
supported them.
Further, Congress’s support for the President’s power suggests no limits on the
Executive’s judgment whether to use military force in response to the national
emergency created by those incidents. Section 2(c)(3) leaves undisturbed the
President’s constitutional authority to determine both when a “national emergen-
cy” arising out of an “attack against the United States” exists, and what types and
levels of force are necessary or appropriate to respond to that emergency. Because
the statute itself supplies no definition of these terms, their interpretation must
depend on longstanding constitutional practices and understandings. As we have
shown in parts I-III of this memorandum, constitutional text, structure and practice
demonstrate that the President is vested with the plenary power to use military
28
Thus, the State Department took the view, in a letter of November 30, 1973, that section 2(c) was
a “declaratory statement of policy.” 8 Op. O.L.C. at 274. Further, in 1975, the Legal Adviser to the
State Department listed six (non-exclusive) situations, not enumerated in section 2(c), in which the
President had independent constitutional authority to deploy troops without either a declaration of war
or specific statutory authorization. See id. at 274-75.
29
We note that section 2(c) cannot itself qualify as a statutory authorization to act in national
emergencies. It is rather a congressional acknowledgment of the President’s nonstatutory, Article II-
based powers. Section 8(d)(2) of the WPR, 50 U.S.C. § 1547(d)(2) (2000), specifically provides that
nothing in the WPR “shall be construed as granting any authority to the President . . . which authority
he would not have had in the absence of this [joint resolution].”
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force, especially in the case of a direct attack on the United States. Section 2(c)(3)
recognizes the President’s broad authority and discretion in this area.
Given the President’s constitutional powers to respond to national emergencies
caused by attacks on the United States, and given also that section 2(c)(3) of the
WPR does not attempt to define those powers, we think that that provision must be
construed simply as a recognition of, and support for, the President’s pre-existing
constitutional authority. Moreover, as we read the WPR, action taken by the
President pursuant to the constitutional authority recognized in section 2(c)(3)
cannot be subject to the substantive requirements of the WPR, particularly the
interrelated reporting requirements in section 4 and the “cut off” provisions of
section 5, 50 U.S.C. §§ 1543-1544.30 Insofar as the Constitution vests the power in
the President to take military action in the emergency circumstances described by
section 2(c)(3), we do not think it can be restricted by Congress through, e.g., a
requirement that the President either obtain congressional authorization for the
action within a specific time frame, or else discontinue the action. Were this not
so, the President could find himself unable to respond to an emergency that
outlasted a statutory cut-off, merely because Congress had failed, for whatever
reason, to enact authorizing legislation within that period.
To be sure, some interpreters of the WPR take a broader view of its scope. But
on any reasonable interpretation of that statute, it must reflect an explicit under-
standing, shared by both the Executive and Congress, that the President may take
some military actions—including involvement in hostilities—in response to
emergencies caused by attacks on the United States. Thus, while there might be
room for disagreement about the scope and duration of the President’s emergency
powers, there can be no reasonable doubt as to their existence.
The Joint Resolution of September 14, 2001. Whatever view one may take of
the meaning of section 2(c)(3) of the WPR, we think it clear that Congress, in
enacting the “Joint Resolution [t]o authorize the use of United States Armed
Forces against those responsible for the recent attacks launched against the United
States,” Pub. L. No. 107-40, 115 Stat. 224 (2001), has confirmed that the President
has broad constitutional authority to respond, by military means or otherwise, to
the incidents of September 11.
First, the findings in the Joint Resolution include an express statement that “the
President has authority under the Constitution to take action to deter and prevent
acts of international terrorism against the United States.” Id. This authority is in
30
True, the reporting requirement in section 4(a)(1) purports to apply to any case in which U.S.
armed forces are introduced into hostilities “[i]n the absence of a declaration of war.” 50 U.S.C.
§ 1543(a)(1). Further, the “cut off” provisions of section 5 are triggered by the report required by
section 4(a)(1). Thus, the language of the WPR indicates an intent to reach action taken by the
President pursuant to the authority recognized in section 2(c)(3), if no declaration of war has been
issued. We think, however, that it would be beyond Congress’s power to regulate the President’s
emergency authority in the manner prescribed by sections 4(a)(1) and 5.
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President’s Authority to Conduct Military Operations Against Terrorists
addition to the President’s authority to respond to past acts of terrorism. In
including this statement, Congress has provided its explicit agreement with the
Executive Branch’s consistent position, as articulated in Parts I-III of this memo-
randum, that the President has the plenary power to use force even before an attack
upon the United States actually occurs, against targets and using methods of his
own choosing.
Second, Congress also found that there is a “threat to the national security and
foreign policy of the United States posed by the[] grave acts of violence” on
September 11, and that “such acts continue to pose an unusual and extraordinary
threat to the national security and foreign policy” of this country. Insofar as “the
President’s independent power to act depends upon the gravity of the situation
confronting the nation,” Youngstown Sheet & Tube, 343 U.S. at 662 (Clark, J.,
concurring in judgment), these findings would support any presidential determina-
tion that the September 11 attacks justified the use of military force in response.
Further, they would buttress any presidential determination that the nation is in a
state of emergency caused by those attacks. The Constitution confides in the
President the authority, independent of any statute, to determine when a “national
emergency” caused by an attack on the United States exists.31 Nonetheless,
congressional concurrence is welcome in making clear that the branches agree on
the seriousness of the terrorist threat currently facing the Nation and on the
justifiability of a military response.
Third, it should be noted here that the Joint Resolution is somewhat narrower
than the President’s constitutional authority. The Joint Resolution’s authorization
to use force is limited only to those individuals, groups, or states that planned,
authorized, committed, or aided the attacks, and those nations that harbored them.
It does not, therefore, reach other terrorist individuals, groups, or states, which
cannot be determined to have links to the September 11 attacks. Nonetheless, the
President’s broad constitutional power to use military force to defend the Nation,
recognized by the Joint Resolution itself, would allow the President to take
whatever actions he deems appropriate to pre-empt or respond to terrorist threats
from new quarters.
31
See Prize Cases, 67 U.S. at 670 (whether a state of belligerency justifying a blockade exists is to
be decided by the President); see also Sterling v. Constantin, 287 U.S. 378, 399 (1932) (“By virtue of
his duty to ‘cause the laws to be faithfully executed’, the Executive is appropriately vested with the
discretion to determine whether an exigency requiring military aid for that purpose has arisen.”); Moyer
v. Peabody, 212 U.S. 78, 83 (1909) (“[T]he governor’s declaration that a state of insurrection existed is
conclusive of that fact.”); Campbell, 203 F.3d at 26-27 (Silberman, J., concurring) (The Court in the
Prize Cases “made clear that it would not dispute the President on measures necessary to repel foreign
aggression.”); cf. Martin v. Mott, 25 U.S. (12 Wheat.) 19, 30 (1827) (President had unreviewable
discretion to determine when “emergency” existed under statute enabling him to call up militia).
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V.
In light of the text, plan, and history of the Constitution, its interpretation by
both past Administrations and the courts, the longstanding practice of the Execu-
tive Branch, and the express affirmation of the President’s constitutional authori-
ties by Congress, we think it beyond question that the President has the plenary
constitutional power to take such military actions as he deems necessary and
appropriate to respond to the terrorist attacks upon the United States on September
11, 2001. Force can be used both to retaliate for those attacks, and to prevent and
deter future assaults on the Nation. Military actions need not be limited to those
individuals, groups, or states that participated in the attacks on the World Trade
Center and the Pentagon: the Constitution vests the President with the power to
strike terrorist groups or organizations that cannot be demonstrably linked to the
September 11 incidents, but that, nonetheless, pose a similar threat to the security
of the United States and the lives of its people, whether at home or overseas.32 In
both the War Powers Resolution and the Joint Resolution, Congress has recog-
nized the President’s authority to use force in circumstances such as those created
by the September 11 incidents. Neither statute, however, can place any limits on
the President’s determinations as to any terrorist threat, the amount of military
force to be used in response, or the method, timing, and nature of the response.
These decisions, under our Constitution, are for the President alone to make.
JOHN C. YOO
Deputy Assistant Attorney General
Office of Legal Counsel
32
We of course understand that terrorist organizations and their state sponsors operate by secrecy
and concealment, and that it is correspondingly difficult to establish, by the standards of criminal law
or even lower legal standards, that particular individuals or groups have been or may be implicated in
attacks on the United States. Moreover, even when evidence sufficient to establish involvement is
available to the President, it may be impossible for him to disclose that evidence without compromising
classified methods and sources, and so damaging the security of the United States. See, e.g., Chicago &
Southern Air Lines, 333 U.S. at 111 (“The President . . . has available intelligence services whose
reports are not and ought not to be published to the world.”); see also Ruth Wedgwood, Responding to
Terrorism: The Strikes Against Bin Laden, 24 Yale J. Int’l L. 559, 568-74 (1999) (analyzing difficulties
of establishing and publicizing evidence of causation of terrorist incidents). But we do not think that the
difficulty or impossibility of establishing proof to a criminal law standard (or of making evidence
public) bars the President from taking such military measures as, in his best judgment, he thinks
necessary or appropriate to defend the United States from terrorist attacks. In the exercise of his plenary
power to use military force, the President’s decisions are for him alone and are unreviewable.
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