The Odd Clauses (17 page)

A lot of legal and policy commentators think that at least some of them were. Their view is that while the “commander in chief clause” may give the president wide latitude to make tactical decisions about how to prosecute hostilities once they've begun, the Constitution gives Congress the exclusive power to decide whether to start these hostilities in the
first place. For example, the late John Hart Ely, dean of the Stanford Law School in the 1980s and probably on most legal academics' top-ten list of all-time-greatest constitutional scholars, once argued that while the “original understanding” of many parts of the Constitution “can be obscure to the point of inscrutability,” this is not the case with the Constitution's allocation of war powers: “The power to declare war was constitutionally vested in Congress. The debates, and early practice, establish that this meant that all wars, big or small, ‘declared' in so many words or not—most weren't, even then—had to be legislatively authorized.” In the words of another pro-Congress scholar, “The constitutional framework adopted by the framers is clear in its basic principles. The authority to initiate war lay with Congress. The President could act unilaterally only in one area: to repel sudden attacks. Anyone who scans the war-power provisions of the Constitution is likely to agree . . . that ‘the text tilts decisively toward Congress.' ” These scholars unsurprisingly also believe that it's better for Congress to have the exclusive power to initiate hostilities, because as a large deliberative body, it is less likely to impetuously involve the nation in some sort of military morass than a single person.

On the other hand, a good number of presidential-power hawks have argued that the president's power to instigate hostilities is far greater than these stingy pro-Congress scholars would admit. These scholars tend to argue that the “declare war clause” grants Congress only the power to formally recognize that a state of war exists between the United States and a foreign country, and that the clause has nothing to do with the decision to start hostilities. Why then have such a seemingly unimportant clause? In the words of Professor John Yoo of the University of California at Berkeley, one of the authors of the “torture memo” (to which we will return shortly), the “primary function” of a congressional declaration of war “was to trigger the international laws of
war, which would clothe in legitimacy certain actions taken against one's own and enemy citizens.” Once the declare war clause is put aside as a source of the power to instigate hostilities, the commander in chief clause, combined with a long history of presidential hostility-initiation going back to the eighteenth century, are left as strong evidence that the framers intended the president to be able to start wars without congressional authorization. Once again, shockingly, the policy preferences of these scholars align perfectly with their reading of the constitutional text and the nation's history. Having a single person in charge of the decision to go to war ensures, in their view, that the government is directly accountable to the electorate and that it can (in Yoo's words) act “swiftly and with decisiveness” in the face of external dangers.

This disagreement over war powers came to a head during the Vietnam War, as Presidents Lyndon Johnson and Richard Nixon continued to pour money and troops into the conflict without an existing formal congressional declaration of war. Congress responded in 1973 by passing (over a presidential veto) a law called the War Powers Resolution. The resolution provides that the president can only send troops into hostilities in an emergency or when Congress has either declared war or authorized the president's action by statute. The president must then withdraw the troops after sixty days unless Congress has officially declared war by that point. The resolution is symbolically interesting but, as a practical matter, largely irrelevant. Pretty much all the presidents who have served since 1973 believe the War Powers Resolution unconstitutionally limits the president's power to initiate hostilities under the commander in chief clause, and, despite the fact that presidents have uniformly ignored the resolution, Congress has not insisted that these presidents follow it. The Supreme Court, for its part, has routinely refused to consider challenges to the president's decision to initiate hostilities,
generally invoking the so-called political-question doctrine, which is basically something the Court has come up with so it can dodge issues it deems too politically dicey for courts to get anywhere near.

The second big constitutional foreign affairs issue has to do with the scope of the president's powers to conduct a war once the country is in one. Does the commander in chief power give the president the exclusive authority to make decisions about how the war is to be carried out—decisions, for instance, about tactics, manpower, or treatment of prisoners—or does Congress also possess some power, by virtue of its constitutional authority to support and make rules for the armed forces, to decide some of these things itself?

The question became particularly important during the administration of George W. Bush, when it emerged that the administration's plans for “enhanced interrogation” (that's a Bushism for “torture”) would potentially violate a congressional statute making it illegal for anyone to “commit or attempt to commit torture.” In an August 1, 2002, memorandum sent by Jay Bybee, the head of the Office of Legal Counsel at the Justice Department (and now—yikes!—a federal appellate judge), to White House counsel Alberto Gonzalez, the Justice Department not only interpreted the statute's definition of torture incredibly narrowly, but it also argued that to the extent the statute might ban some useful instances of torture, the law would violate the president's authority to conduct war. The memo was drafted primarily by the aforementioned John Yoo, and it expressed a sweeping view of the president's commander in chief power. As the memo puts it, “the President enjoys complete discretion in the exercise of his Commander-in-Chief authority and in conducting operations against hostile forces.” As a result, the antitorture statute would have to bend. The memo concludes:

As Commander-in-Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy. The demands of the Commander-in-Chief power are especially pronounced in the middle of a war in which the nation has already suffered a direct attack. In such a case, the information gained from interrogations may prevent future attacks by foreign enemies. Any effort to apply [the antitorture statute] in a manner that interferes with the President's direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional.

The torture memo, when it was released, proved to be controversial, to put it mildly. More accurately, people went nuts. Harold Koh, for one—the Yale Law School dean at the time and also a former and future bigwig legal adviser in the State Department—called it “the most clearly legally erroneous opinion I have ever read.” The subsequent head of OLC in the Bush administration withdrew the opinion, and the Obama administration completely repudiated it. Official investigations into wrongdoing on the part of the memo's authors were conducted. Spain has considered indicting six Bush administration officials, including Bybee and Yoo, on war crimes charges.

Meanwhile, scholars have started looking more carefully into the question of how much power over war-making decisions the commander in chief clause actually gives to the president and leaves to the Congress. These scholars have examined the early practices of the Republic to see whether Congress in fact made tactical and operational decisions regarding war during the time of the framers, as a way of trying to understand what the Constitution's drafters intended. One dynamic duo of scholars from Harvard and
Georgetown (who both incidentally took high-up positions at OLC in the Obama administration) concluded that “there is surprisingly little Founding-era evidence supporting the notion that the conduct of military campaigns is beyond legislative control and a fair amount of evidence that affirmatively undermines it.” Professor Prakash of the University of Virginia, whom we met earlier in connection with the question of whether someone can be a senator and the president at the same time, basically concurs. Noting that early Congresses not only “regulated the treatment of enemy prisoners” but also made such down-in-the-trenches decisions as where “warships might sail in wartime” and “how soldiers would march and fire arms,” Prakash concludes that “the Constitution creates a powerful Commander-in-Chief who is authorized to direct military operations, but who is nevertheless subject to congressional direction in all war and military matters.”

In the midst of this new concern over whether Congress can make decisions about how wars should be carried out, scholars have turned to the letters of marque and reprisal clause to see whether it might shed any light on the question. In a way, this might seem sort of surprising—what could a clause dealing with the authorization of privateers to fight pirates have to do with whether Congress can regulate the president's power to interrogate prisoners?—but on the other hand, perhaps it's quite natural. After all, scholars have been talking about the letters of marque and reprisal clause in connection with the first constitutional foreign affairs question (the one about initiating hostilities) ever since the Vietnam War.

English kings and other European rulers had authorized private ships to attack foreign vessels as far back as the fourteenth
century. Back then, different terms were used for different kinds of authorizations—for those granted during wartime, for those granted during peace, for those granted to private individuals who had themselves been wronged somehow by a foreign state, and so on. Some of the authorizations were called “letters of marque” and some were called “letters of reprisal,” and there were other names as well. By the eighteenth century, however, all these nomenclature distinctions seem to have disappeared, and a “letter of marque and reprisal” came to refer to any authorization from a government to a private vessel to attack a foreign ship and take its stuff. A ship sailing with a letter of marque could attack a foreign ship without violating international law; absent the letter of marque, the same attack would constitute piracy, typically punishable by death. Letters of marque included specific conditions that the private vessel had to follow if its owners wanted to keep their booty. So-called prize courts existed to adjudicate claims among vessels that some particular booty had not been properly bootified and was therefore not bootylicious (note: not official legal terms).

Letters of marque and reprisal played an important role for the American colonies during the Revolution. The colonies didn't have a lot of money, and they didn't have much of an organized navy, so they had to rely heavily on private vessels to fight their sea battles and capture British ships. According to one estimate, the colonial government had a total of sixty-four ships in its navy, but it issued almost eight hundred letters of marque and reprisal to privateers. These private vessels captured three times the number of British ships captured by the actual navy. In the War of 1812, the imbalance between naval ships and ships sailing under letters of marque and reprisal was even greater. Only twenty-two ships sailed for the American Navy, while several hundred private ships sailed with letters of marque. Again, the privateers captured
more ships than the government; this time, however, the difference was eightfold rather than three.

The use of privateers sailing with letters of marque and reprisal was so important to the early American Republic that when the major European powers decided to ban privateering through the Treaty of Paris in 1856, the United States refused to sign on. The United States was concerned that without privateers, the government would have to raise and support an enormous standing navy. Not only would this be incredibly costly, but it also ran counter to the prevailing isolationist ideology of the time. As Yale law professor Nicholas Parrillo explains in an article about the history of privateering in the United States, Americans in the nineteenth century thought that a country with a standing army and navy would be more likely to find itself engaged in hostilities abroad. Many also felt that permanent military divisions would transfer money from the states to the federal government and from “virtuous farmers in the heartland” to “Eastern elites who financed the war debt and . . . giant industrial firms who sold warships, artillery, and other weapons.” When Secretary of State William L. Marcy announced the nation's refusal to sign the Treaty of Paris, he declared that permanent navies, like permanent armies, were “detrimental to national prosperity and dangerous to civil liberty.” Lots of people at the time even analogized private ships sailing under letters of marque to the iconic state and local militia. As Professor Parrillo intriguingly suggests, “[f]or many Americans, it seems, the clause of the Constitution authorizing ‘letters of marque' had a purpose not unlike that of the Second Amendment, which guaranteed citizens the right to ‘bear arms' in a ‘militia' composed of laypersons organized in local communities, as opposed to professional warriors identified with the central state.” Might it be more than just pure coincidence that Congressman Paul's call for
revival of privateering in Somalia followed so closely on the heels of the Supreme Court's 2008 revitalization of the Second Amendment?

The United States didn't issue letters of marque and reprisal after the War of 1812, but until the late nineteenth century, the government still considered their use to be an active option in case of war. When it looked like the British might intervene in the Civil War on the side of the Confederacy, for example, the Union government threatened to use privateers against the interlopers, and Congress even passed a law authorizing President Lincoln to issue letters of marque, something he never ended up doing. The Confederacy, however, did issue letters of marque to private vessels, although the Union, viewing the conflict as an internal rebellion rather than a war between two sovereign states, refused to recognize these letters as legitimate. When the Union seized a ship called the
Savannah,
which was purportedly sailing under a letter of marque issued by the Confederacy, the Union government tried the captain and crew as pirates, much to the ire of the South. After the New York jury deadlocked, the Union decided not to retry the case, instead treating the captured crew as prisoners of war rather than pirates and ultimately exchanging them for Union prisoners of war held by the Confederacy. When the Civil War ended, the government promptly dismantled the large navy raised by the Union during the conflict, thus signaling that it still considered privateering to be preferable to raising a permanent navy. Some twenty-five years later, however, according to Professor Parrillo, the country's wariness about building a standing navy melted away. A major program of shipbuilding began around 1890, and the idea of using privateers ceased being a plausible alternative to official navy action . . . at least until Ron Paul revived the notion in 2008.