Presidential War Powers In A Never-ending War

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Conference Papers -- Western Political Science Association


Politics and Government


The Bush Administration has asserted broad executive powers to conduct the "War on Terror" with a minimum of congressional approval or oversight, pointing to the Authorizations for the Use of Military Force AUMF] passed by Congress to authorize the use of force in Iraq, Afghanistan and the broader War on Terror and the president's constitutional role as commander-in-chief of American armed forces for justification of its expansive interpretation of presidential authority. Critics of the Bush Administration's approach argue that the Constitution demands a greater advisory role for Congress. Accordingly, congressional authorization is needed to deploy and maintain troops in the field, implement intelligence operations, or suspend habeas corpus and institute the use of military tribunals to try suspected terrorists.The critical difference between these two sides hinges on whether the War on Terror is, in the legal sense, a war. The AUMFs of September 18, 2001 and October 16, 2002 play a pivotal role in this debate. The Bush Administration claims that the AUMFs are the functional and legal equivalents of formal declarations of war, which then supports the assertion of broad war powers abroad and at home. Critics argue that the AUMFs should be seen as much more limited, only giving the president congressional approval to use military force in a specific manner, and that other actions by the president, such as approving domestic surveillance operations or establishing military commissions, require additional and explicit authorizations.This paper reconciles these two positions under a comprehensive and original understanding of the "Declare War" clause of the U.S. Constitution (Article I, Section 8) by which Congress is given the power to declare war but which fails to spell out what exactly that power entails and encompasses. In this argument, an AUMF serves a very different role from a formal declaration of war, and by passing an AUMF in place of declaration, Congress has made a critical decision about the scope of power to be given to the president to prosecute the War on Terror. My central claim is that the congressional power to declare war is less about the initiation of hostilities and more about the authorization of the president to take actions of a legislative nature - that is, actions that alter the legal status of a U.S. citizen or legal resident - in the domestic arena in the course of waging war. That is, while the president has broad inherent constitutional powers to deploy U.S. armed forces into combat abroad without specific authorization from Congress, absent such authorization, the president is more limited when trying to take actions that affect the legal status of persons within the United States itself. The AUMFs passed by Congress represent a middle ground, of sorts, as they signal congressional support for the military actions and serve to activate many of the president's war powers (as was recognized by the Supreme Court in the Hamdi v. Rumsfeld decision of 2004). However, the AUMFs do not go so far as to fully cede lawmaking power to the president. Such a cession would enable the executive branch to take actions of a legislative nature in the domestic front, such as changing the laws governing surveillance of persons within the United States or those governing the trial of a suspected terrorist. Only an explicit ceding of legislative power by Congress - as would happen in a declaration of war - can give the president such authority. With these distinctions in mind, we can make sense of the recent legal decisions striking down the warrantless domestic wiretapping program of the NSA, the designation of a legal U.S. resident as an "enemy combatant," and the military commission intended to try the former driver of Osama bin Laden. ..PAT.-Unpublished Manuscript



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