Length: 44694 words article: beyond accountability: the constitutional, democratic, and strategic problems with privatizing war name

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n173. Montesquieu, who is so intimately associated with the theory and architecture of separation of powers, was not unaware of the democratic reasons - and not just the limited-government reasons - why legislatures should be entrusted with considerable warmaking powers. He articulated the need for popular consent in such weighty policy decisions: "To prevent the executive power from being able to oppress, it is requisite that the armies with which it is intrusted should consist of the people, and have the same spirit as the people... . To obtain this end ... if there be a standing army ... the legislative power should have a right to disband them as soon as it pleased." C. Montesquieu, The Spirit of the Laws (C.T. Nugent trans., 1949). Moreover, Blackstone noted that "one of the principal bulwarks of civil liberty ... was the limitation of the king's prerogative by bounds so certain and notorious, that is impossible he should ever exceed them, without the consent of the people ... or without ... a violation of that original contract." 1 William Blackstone, Commentaries on the Laws of England, ch. 7 (1st ed. 1765); see also John Locke, Two Treatises of Government ch. 14, para. 160 (P. Laslett rev. ed., New American Library 1963) (3d ed. 1698) (characterizing the term "prerogative" as one including executive authority over military affairs). Madison took exception with the longstanding Lockean theory of executive prerogative in making martial decisions and recognized that "the power to declare war ... is not an execution of laws... . It is, on the contrary, one of the most deliberative acts that can be performed." James Madison, Letters of Helvidius, No. I, Aug-Sept 1793, reprinted in 6 The Writings of James Madison, supra note 172, at 138.
n174. Koh, supra note 170. Dean Koh has asserted:

The National Security Constitution grows out of the ... principle that the system of checks and balances is not suspended simply because foreign affairs are at issue... . The Constitution requires that we be governed by separate institutions sharing foreign policy powers... . As it has evolved, the National Security Constitution assigns to the president the predominant role in the process, but affords him only a limited realm of exclusive powers, with regard to diplomatic relations and negotiations and to the recognition of nations and governments. Outside of that realm, government decisions regarding foreign affairs must transpire within a sphere of concurrent authority, under presidential management, but bounded by the checks provided by congressional consultation... .

Id. at 69 (emphasis added); see also Dellums v. Bush, 752 F. Supp. 1141, 1148 (D.D.C. 1990) (noting that the deployed forces were construed to be of such a magnitude and significance as to present no serious claim that a war would not ensue if they became engaged in combat.); Harold Hongju Koh, The Coase Theorem and the War Power: A Response, 41 Duke L.J. 122, 123 (1991) ("The Constitution does not permit the President to order U.S. armed forces to make war without meaningful consultation with Congress and receiving its affirmative authorization ... .").
n175. See, e.g., Brandon, supra note 168, at 1843 (recognizing the shared authority over military affairs that the Constitution vests in its two elected branches); H. Jefferson Powell, The President's Authority over Foreign Affairs: An Executive Branch Perspective, 67 Geo. Wash. L. Rev. 527, 550 (1999) (recognizing the important role Congress plays in warmaking decisions even while the author advocates expansive presidential authority).
n176. See Swaim v. United States, 28 Ct. Cl. 173, 221 (1893) ("Congress may increase the Army, or reduce the Army, or abolish it altogether ... . "); Powell, supra note 175, at 569 (noting that Congress can limit the exercise of the president's deployment power by refusing to provide the Executive with the force necessary to conduct military affairs). For a recent example involving congressional deliberation as to the size of the American military, see Thom Shanker, Officials Debate Whether To Seek a Bigger Military, N.Y. Times, July 21, 2003, at A6.
n177. See Powell, supra note 175, at 569.
n178. See infra note 184 and accompanying text.
n179. See, e.g., United States v. O'Brien, 391 U.S. 367 (1968); Selective Draft Law Cases, 245 U.S. 366 (1918); Harrup A. Freeman, The Constitutionality of Peacetime Conscription, 31 Va. L. Rev. 40, 56-59 (1944); Leon Friedman, Conscription and the Constitution: The Original Understanding, 67 Mich. L. Rev. 1493, 1494-1500 (1969); David I. Lewittes, Constitutional Separation of War Powers: Protecting Public and Private Liberty, 57 Brook. L. Rev. 1083, 1138-47 (1992) (describing Congress's exclusive powers over drafting and maintaining an army); see also U.S. Const. art. I, 8, cl. 12 (raise and support clause); id. at art. I, 8, cl. 15-16 (providing for Congress's exclusive authority to call forth the states' militias). Congress also can terminate, or refuse to call for a draft. See, e.g., Selective Service Act of 1948, Pub. L. No 80-759, 62 Stat. 604 (1948).
n180. U.S. Const. art. I, 8, cl. 12 (raise and support clause); see Perpich v. Department of Defense, 496 U.S. 334 (1990) (upholding Congress's power to activate reservists); Selective Draft Law Cases, 245 U.S. at 369 (affirming that Congress could call up state militia personnel to fight foreign enemies); Johnson v. Powell, 414 F.2d 1060 (5th Cir. 1969) (acknowledging Congress's power to activate national guard units for combat duty); Dukakis v. Department of Defense, 686 F. Supp. 30 (D. Mass. 1988) (same); see also Presidential Reserve Call-Up Act, 10 U.S.C. 12304 (2000) (prescribing the scope and procedures for the president to call up reservists); Capt. Kenneth M. Theurer, Low-Level Conflicts and the Reserves: Presidential Authority Under 10 U.S.C. 673(b), 62 U. Cin. L. Rev. 1135, 1141-43 (1994) (describing the process by which reservists are activated).
n181. Though, of late, Congress has at times preferred a larger military than the president, this disagreement is one often shaped by local politics and an unwillingness among members of Congress to allow base closings in their respective districts. See, e.g., Elizabeth Becker, Senate Rejects Pentagon's Request to Close More Bases, N.Y. Times, Aug. 27, 1999, at A22; Andrew Rosenthal, Lawmakers Scurrying To Protect Home Bases, N.Y. Times, Jan. 27, 1990, at A13. Such considerations reveal how any one congressional power may not be a sufficient or effective check on the president since external considerations (such as preserving local jobs and securing re-election) may be prioritized by the People's representatives.
n182. See Loving v. United States, 517 U.S. 748, 768 (1996) ("We give Congress the highest deference in ordering military affairs."); Gilligan v. Morgan, 413 U.S. 1, 10 (1973) ("The ... decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches."); see also U.S. Const. art. I, 8, cl. 14; Uniform Code of Military Justice, 10 U.S.C. 801-946 (2000).
n183. As Commander-in-Chief, the president's powers are undisputed. See, e.g., The Federalist No. 74, at 447 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("The direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand."); William Howard Taft, Our Chief Magistrate and His Powers 128-29 (1916) ("In carrying on the war as Commander-in-Chief, it is he who is to determine the movements of the army and navy. Congress could not ... themselves ... carry on campaigns."); William Howard Taft, The Boundaries Between the Executive, the Legislative, and the Judicial Branches of the Government, 25 Yale L.J. 599, 610-12 (1916).

However, while Congress cannot deprive the president of the command of the Army and Navy, it alone can provide him with an army or navy to command. And, since Congress is empowered to make rules for the "Government and Regulation of land and naval Forces," U.S. Const. art. I, 8, cl. 14, it may, to some extent, also impinge on command functions. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 644 (1952); see also id. at 646 (Jackson, J., concurring) ("No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role."); Ex parte Quirin, 317 U.S. 1, 26 (1942) (noting that the president has the power to "carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces... ."); Louis Henkin, Foreign Affairs and the United States Constitution 337 n.11 (2d ed. 1996); Abraham Sofaer, War, Foreign Affairs and Constitutional Power 3 (1976) (asserting that it is most accurate to understand the president as Commander-in-Chief as an "agent of the legislature").

n184. Congress has control of the administration and structuring of the military, which can be exercised in ways to thwart presidential aims. See, e.g., Wormuth & Firmage, supra note 172, at 91 (noting how Congress's seniority rules as applied to the promotion of military officers limited Lincoln's flexibility in appointing certain generals); Richard Hartzman, Congressional Control of the Military in a Multilateral Context, 162 Mil. L. Rev. 50, 99-100 (1999) (describing Congress's efforts to reform military command structures both within the armed forces and vis-a-vis civilian department heads); see also 1986 Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub. L. No. 99-433, 100 Stat. 992 (1986); Act of Feb. 14, 1903, ch. 553, 32 Stat. 830 (1903); Youngstown, 343 U.S. at 644; Priest, supra note 47, at 95-96 (characterizing the 1986 reorganization by Congress as altering the chain of command at the higher levels of military and civilian leadership within the Department of Defense); Col. Charles J. Dunlap, Jr., Welcome to the Junta: The Erosion of Civilian Control of the U.S. Military, 29 Wake Forest L. Rev. 341, 375-76 (same).
n185. See U.S. Const. art. II, 2; infra notes 231-46 and accompanying text; see also Yeoman, supra note 4.
n186. See U.S. Const. art. I, 9, cl. 7. Appropriations power can effectively limit a president's ability to command troops and sustain efforts abroad. See, e.g., William C. Banks & Peter Raven-Hansen, National Security Law and the Power of the Purse, 119, 137-57 (1994); Michael J. Glennon, Strengthening the War Powers Resolution: The Case for Purse-Strings Restrictions, 60 Minn. L. Rev. 1 (1975); Harold Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 Yale L.J. 1255, 1267 (1988) (describing that between 1973 and 1974 alone, "Congress enacted seven separate provisions declaring that no funds authorized or appropriated ... could be expended to support United States military ... forces in Vietnam, Cambodia, or Laos"); Peter Raven-Hansen & William C. Banks, Pulling the Purse Strings of the Commander in Chief, 80 Va. L. Rev. 833 (1994); Kate Stith, Congress' Power of the Purse, 97 Yale L.J. 1343, 1353 (1988); see also Fisher supra note 169, at 199-206 (advocating the importance of congressional power over appropriations to serve as an effective check against an overzealous executive branch); John Hart Ely, The American War in Indochina, Part II: The Unconstitutionality of the War They Didn't Tell Us About, 42 Stan. L. Rev. 1093, 1105 (1990) ("Even the staunchest supporters of presidential power in this area grant - indeed adopt as a critical premise of their argument - that if Congress does not like the way a war is being conducted it can pull the financial plug on it ... .").
n187. U.S. Const. art. I, 8, cl. 12 ("But no Appropriation of Money to that [military] Use shall be for a longer Term than two Years").
n188. Stith, supra note 186, at 1353.
n189. Id. at 1361. In a 1973 appropriations bill, Congress told the President to stop bombing Cambodia by August 15, and he did. See Charles L. Black, Jr., The Working Balance of the American Political Departments, 1 Hastings Const. L.Q. 13, 15-16 (1974). Professor Black added that "if the will had existed, [Congress] could have done much the same thing four, or six or eight tragic years ago - at any time they really had wanted." Id.; see also Koh, supra note 186, at 1267.
n190. Koh, supra note 186, at 1265 n.41 (describing the Boland Amendment that prohibited "the expenditure of funds ... to any entity of the United States ... for assistance to the Nicaraguan democratic resistance to support ... operations in Nicaragua"); see also Andrew W. Hayes, The Boland Amendments and Foreign Affairs Deference, 88 Colum. L. Rev. 1534, 1565-69 (1988) (describing the congressional appropriations bill that cut off the Executive's ability to fund the Contras in 1984); Frank G. Colella, Note, Beyond Institutional Competence: Congressional Efforts To Legislate United States Foreign Policy Toward Nicaragua - The Boland Amendments, 54 Brook. L. Rev. 131 (1988).
n191. For examples of Congress restricting funds to curtail - or register disapproval of - military engagements, see Act of Nov. 11, 1993, Pub. L. No. 103-139, 8151(b), 107 Stat. 1418 (1993) (restricting funds to the efforts in Somalia); Act of Sept. 30, 1994, Pub. L. No. 103-335, 8135, 108 Stat. 2599 (1994) (same); and, Act of Sept. 30, 1994, Pub. L. No. 103-335, tit. IX, 108 Stat. 2599 (1994) (restricting funds to finance any military efforts in Rwanda). Moreover, in September 1995, the House passed an appropriations limitation that prohibited funds for new operations in Bosnia, and the Senate passed 94-2 an amendment against funds for new combat deployments in Bosnia. See Charles Tiefer, War Decisions in the Late 1990s by Partial Congressional Declaration, 36 San Diego L. Rev. 1, 11-12 (1999). Professor Jane Stromseth notes that with respect to Bosnia, in September 1995, the Senate "passed an amendment to the State, Commerce, and Justice Appropriations Bill for Fiscal Year 1996, which expressed the sense of the Senate that funds provided by the bill should not be used to deploy U.S. combat troops to Bosnia unless Congress first approved the deployment in advance." Jane E. Stromseth, Understanding Constitutional War Powers Today: Why Methodology Matters, 106 Yale L.J. 845, 903 n.304 (1996). But see Louis Henkin, Foreign Affairs and the Constitution 109 (1st ed. 1972) ("In fact, Congress has rarely refused to adopt the laws or appropriate the funds required to implement an international undertaking, though Congress might differ with the president as to how much money or what laws were required.").
n192. See infra notes 223-27.
n193. See U.S. Const. art. 1, 8. Definitionally, at the time of the Founding, there was little legal difference between formal and undeclared, or limited wars - and it was thought that both types of wars would require congressional authorization. See, e.g., Emmerich de Vattel, The Law of Nations 399 (J. Chitty ed. 1863) (1758); Ely, supra note 186, at 1104 ("The framers and ratifiers of the Constitution provided that all acts of war performed on behalf of the United States - even when they fell short of full-fledged war and even when undertaken by private parties ... had to be authorized by Congress.") (emphasis added); Ramsey, supra note 172, at 1546 (noting that because war can be declared by simply commencing hostilities - as well as by formal announcement - it is clear that Congress was given power over both sorts of declarations); id. at 1545 (indicating that "declaring war meant initiating a state of war by public act, and it was understood [at the time of the Founding] that this could be done either by formal declaration or by commencing armed hostilities"); see also John Hart Ely, War and Responsibility 3 (1993) (describing how all wars, large or minor, declared officially or not, had to be legislatively authorized).

As Judge Sofaer has pointed out, none of the first five presidents ever claimed inherent constitutional powers that would permit him to deploy troops in combat zones, even in instances well short of formal declarations of war, without congressional approval. See Abraham D. Sofaer, The Presidency, War and Foreign Affairs: Practice Under the Framers, 40 L. & Contemp. Probs. 12, 36-37 (1976); see also Koh, supra note 170, at 80. Specifically, in the early years of the Republic, the president sought congressional authorization for a series of what would have to be construed as limited wars. These conflicts included the Neutrality crisis of 1793, the 1798 Naval War with France, the Nootka Sound incident, as well as skirmishes with Native American tribes and Algierian pirates. See Sofaer, supra note 183, at 100-27; Ramsey, supra note 172, at 1551, 1608. For instance, in a conflict against some Native American tribes, President Washington confined his troops to defensive postures until he received congressional authorization. See Sofaer, supra note 183, at 116-27 (describing this restraint in the context of Native American incursions against America's western border); Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231, 346-50 (2001) (describing similar restraint under later presidents with respect to the Barbary pirates).

This practical deference by the Executive to Congress had judicial support in the early 1800s. When John Adams initiated an undeclared war with France, the Supreme Court, in Bas v. Tingy, 4 U.S. (4 Dall.) 37, 43-46 (1800), upheld this exercise not because the president had plenary power in military affairs, but because it believed that Congress had authorized limited hostilities by means other than a formal war declaration. See id. at 43; see also Alexander DeConde, The Quasi War: The Politics and Diplomacy of the Undeclared War with France, 1797-1801, at 89-98 (1966). Accordingly, though none of the Justices explicitly stated that only Congress might authorize even a limited, or "imperfect" war, that conclusion was clearly conveyed by the fact that even this modest engagement with the French required some form of congressional authorization. See, e.g., Lofgren, supra note 167, at 701. And, in Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801), the Court again located the authority for a naval capture of a neutral ship as stemming from Congress. Chief Justice Marshall held that "the whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this enquiry." Id. at 28. The Chief Justice further noted that the authorization for even limited wars was squarely within the purview of Congress. Id. at 32; see also Mark T. Uyeda, Note, Presidential Prerogative Under the Constitution to Deploy U.S. Military Forces in Low-Intensity Conflict, 44 Duke L.J. 777, 794-95 (1995) (suggesting that the consensus surrounding the fact that, in the early years of the Republic, even limited wars required congressional approval served to lay the "primary legal foundation for the assertion of congressional supremacy in the context of [low-intensity conflicts]").
n194. 50 U.S.C. 1541-1548 (2000). The War Powers Resolution has three highly pertinent sections. Section 3 of the Resolution requires:

The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

50 U.S.C. 1542 (2000).

Section 4 of the Resolution requires the President to send a report within forty-eight hours when, absent a declaration of war, he introduces American forces:

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation.

50 U.S.C 1543 (2000).

Finally, 5(b) of the Resolution states that the president may not commit troops to combat for longer than sixty days. If the president wants to commit American forces for a longer period, he may seek the joint resolution provided for in the War Powers Resolution, or he may request separate enabling legislation. 50 U.S.C. 1544 (2000).

n195. Gerhard Casper has called the Resolution a "framework statute." Framework statutes describe major legislative achievements that do not merely "formulate specific policies for the resolution of specific problems, but rather ... implement constitutional policies." Casper, Constitutional Constraints, supra note 170, at 482; see also Koh, supra note 170, at 69-70 (describing framework statutes as specifying the "legal authorities and constraints for particular institutional acts," providing "procedures to evaluate and control particular exercises of delegated powers," and fostering "institutional expectation as to how those powers will be exercised in the future"); Gerhard Casper, The Constitutional Organization of the Government, 26 Wm. & Mary L. Rev. 177, 187 (1985) (listing other framework statutes).
n196. See 50 U.S.C. 1541(a) (2000); see also Treanor, supra note 168, at 705.
n197. See Sen. Joseph R. Biden, Jr. & John B. Ritch III, The War Power at a Constitutional Impasse: A "Joint Decision" Solution, 77 Geo. L.J. 367, 385-90 (1988); Michael Stokes Paulsen, Youngstown Goes To War, 19 Const. Comment. 215, 222 (2002). As Professor Lori Damrosch argues:

The War Powers Resolution ... reclaimed Congress's powers both with respect to "war" and with respect to lesser degrees of "hostilities." ... Congress has surely not abandoned - and indeed has expressed its insistence on asserting - its constitutional prerogatives with respect to introduction of U.S. Forces into hostilities, whether or not those hostilities are denominated "war."

Lori Fisler Damrosch, The Constitutional Responsibility of Congress for Military Engagements, 89 Am. J. Int'l L. 58, 66-67 (1995).
n198. See Edward S. Corwin, The President: Office and Powers, 1787-1957, at 198-201 (1957); Ely, supra note 193, at 10-11 (highlighting Truman's strong executive assumption of powers in initiating the Korean War); Walter F. Murphy et al., American Constitutional Interpretation 460 (2d ed. 1995) (noting how infrequently presidents have sought to comply with the War Powers Resolution); Quincy Wright, The Control of American Foreign Relations 306-10 (1922); 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, 1370-88 (1994); Casper, Constitutional Constraints, supra note 170, at 463 ("The manner in which recent Presidents have conducted United States foreign and defense policy suggests the absence in practice of constitutional constraints and the presence of surprisingly few political constraints."); Robert J. Delahunty & John C. Yoo, The President's Constitutional Authority To Conduct Military Operations Against Terrorist Organizations and the Nations that Harbor or Support Them, 25 Harv. J.L. & Pub. Pol'y 487, 503-04, 509 (2002) (noting that 125 deployments abroad came about by unilateral action by the President without prior express authorization by Congress); Michael D. Ramsey, Presidential Declarations of War, 37 U.C. Davis L. Rev. 321 (2003); Eugene V. Rostow, Great Cases Make Bad Law: The War Powers Act, 50 Tex. L. Rev. 833, 864-66 (1972); Eugene V. Rostow, "Once More unto the Breach:" The War Powers Resolution Revisited, 21 Val. U. L. Rev. 1, 6 (1986); Glen E. Thurow, Presidential Discretion in Foreign Affairs, 7 Vand. J. Transnat'l L. 71, 86 (1973) ("The thrust of the Federalist Papers... . is that the great discretion required in foreign affairs can be made compatible with republican government not by dispersing the power to the greatest extent possible, but by concentrating it in the hands of the President."); John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Power, 84 Cal. L. Rev. 167 (1996); see also Deployment of United States Armed Forces into Haiti, 18 Op. Off. Legal Counsel 173, 175-76 (1994) (recommending to the President that Congress had given him considerable discretion as Commander-in-Chief in deciding how to deploy troops); Authority To Use U.S. Military Forces in Somalia, 16 Op. Off. Legal Counsel 6 (1992) (authorizing the President to "commit troops overseas [to Somalia] 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.'"); Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. Off. Legal Counsel 185, 185-86 (1980) (advising the President that he had independent constitutional authority to order a unilateral deployment abroad at some risk of engagement, to rescue hostages and retaliate against Iran, and to repel any assault against American interests in the Persian Gulf); Training of British Flying Students in the U.S., 40 Op. Att'y Gen. 58, 61-62 (1941) (authorizing the President to "dispose of troops and equipment in such manner and on such duties as best to promote the safety of the country"); Address to the Nation on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 Pub. Papers 1460 (Aug. 20, 1998) (noting President Clinton's unilateral order for American forces to strike at terrorist facilities in Sudan and Afghanistan because of the threat they posed to national security); Leonard Meeker, The Legality of United States Participation in the Defense of Viet-Nam, 54 Dep't St. Bull. 474 (1966), reprinted in Peter M. Shane & Harold H. Bruff, Separation of Powers Law 771 (1996).

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