CONCLUSIONES

The executive branch in the U.S. system of government must confront two related questions when considering using force in counterterrorism: does international law permit the proposed use of force (essentially, an international law question)? In the first chapter, the international legal norms regulating the use of force were detailed in the discussion on Articles 2(4) and 51 of the UN Charter. This chapter examines the second question: does the president have the authority under the U.S. Constitution to use force (the question of domestic legality)? This inquiry focuses on domestic legal constraints on the president when decisions to use force are made. The chapters on the Reagan, Bush I, Clinton, and Bush II administrations will then enumerate how each administration viewed the analysis required by the international law question and the domestic legality question.

A discussion of the President’s authority to use force should begin with the system of checks and balances famously devised by the Framers of the U.S. Constitution to keep each branch of government under control. The Framers, wary of royal prerogatives and cognizant of the high costs of European wars, intended to create a republic with three co-equal branches, the legislature, executive, and judiciary. The theory for the government they created was based on a separation of powers, with one branch of government limiting another branch. At least on paper, Congress’ war-making powers are as great as the President’s because, according to Article 1, section 8 of the Constitution, Congress has the following war powers:

• To declare war, grant letters of marquee and reprisal, and make rules concerning capture on land and water

• To lay and collect taxes. . . to. . . provide for the common defence

• To define and punish . . . offenses against the law of nations (international law)

• To raise and support armies

• To provide and maintain a navy

• To make rules for the government and regulation of the land and naval forces

• To provide for calling forth the militia to execute the laws of the union, suppress insurrection and repel invasions

• To provide for organizing, arming, and disciplining, the militia

In addition, Congress controls the appropriations process to fund wars and may pass laws which are “necessary and proper” to fulfil its duties.

In contrast, the President has fewer war-making powers on paper. As one American legal scholar wrote, “If law were math, we might add up the clauses and declare Congress the winner.” (Baker, 2007: 178) According to Article II of the Constitution, the President is Commander-in-Chief of the army and navy and is obligated to “take care that the laws be faithfully executed.”

The reality is that war-making powers, like other powers, are separate but often shared and the executive branch has more power than a casual reading of the text of the Constitution would indicate. One constitutional law expert explained the situation as an “invitation for Congress and the President to

struggle for the privilege of directing American foreign policy.” (Koh, 1990:

156) Presidential power, which is based on unspecific, but significant inherent powers in constitutional text, tends to expand “when factors such as national crisis, military action, or other matters of expedience call for its exercise.”

(Marshall, 2008: 510)

The U.S. has declared “war” pursuant to Congress passing a declaration eleven times since its founding; the last time was during World War II. The modern trend is for the President to ask Congress for its “support”

(but not necessarily permission) through an authorization for the use of force.

As detailed in subsequent chapters, President George W. Bush claimed inherent war powers as part of his role as Commander-in-Chief and maintained that congressional authorization, although welcome, was not required. His father, the first President Bush, took a similar position before the first Gulf War in 1991. Therefore, in practice, the text of the Constitution alone does not resolve how conflicts regarding decisions to use force are made in the 21^st century.

Koh’s National Security Constitution

Harold Koh, currently the legal advisor to the Department of State in the Obama administration, analyzed the disparity between the few war-making powers granted to the President and the many granted to Congress with contemporary foreign-policy making practice in a ground-breaking book written in 1990. In The National Security Constitution: Sharing Power after the Iran-Contra Affair, Koh, formerly the Dean of Yale Law School, not only

examined the Iran-Contra scandal, but also charted the decline of the American system of checks and balances in foreign affairs. The major premise of the book----that fundamental defects exist in the structure of the American national security decision-making process----has been debated and discussed by political scientists and constitutional law scholars ever since its publication. The National Security Constitution is frequently cited in academic works both supporting and opposing unilateral presidential exercises of the use of force and this research, based upon its theoretical foundations, analyzed the four administrations and their uses of force in counterterrorism with these foundations as a guide.

In essence, Koh argued that a “normative vision of the foreign-policy-making process,” labelled the “national security constitution” emerges partially from the text of the Constitution. (Koh, 1990: 68) In addition to the text of the Constitution, the other sources for the national security constitution include judicial decisions that construe the Constitution, framework statutes enacted by Congress, framework executive orders issued by presidents, and historical precedents involving foreign relations that Koh termed “quasi-constitutional custom.” According to Koh, these sources formed a hierarchy with the text of the Constitution at the top, as the highest source for the national security constitution. Next are the relatively few judicial decisions issued by the U.S.

Supreme Court which interpret the powers allocated to the three branches of government regarding foreign relations; two of the most important cases, Youngstown and Curtiss-Wright, are mentioned later in this chapter.

Framework statutes and framework executive orders occupy the second level of the hierarchy. Framework statutes “specify legal authorities and constraints for particular institutional acts; they provide procedures to evaluate and control particular exercises of delegated powers; and they foster institutional expectations as to how those powers will be exercised in the future.” (Koh, 1990: 70) For the purposes of this thesis, the framework statutes most relevant to the use of force in counterterrorism are the National Security Act of 1947 and the War Powers Resolution of 1973, discussed in subsequent sections.

Quasi-constitutional custom stands at the lowest level of Koh’s hierarchy for the national security constitution; it is analogous to customary international law in that it evolves from actual practice. Instances of quasi-constitutional custom are executive branch practices in foreign affairs or, more specifically, counterterrorism that Congress approves of, or acquiesces to, and formal or informal congressional actions with which the president has repeatedly complied. Like customary international law, which may be amended by treaties, quasi-constitutional custom may be altered by a subsequent statute passed by Congress and signed into law by the president.

Although quasi-constitutional custom appears at the lowest level of Koh’s hierarchy, making its significance opaque, it is quite germane to the use of force in counterterrorism because many of the activities the Bush II administration undertook during its “war on terror” were based on previous presidential practices. As detailed in later chapters, the second Bush administration frequently justified its assertions of executive power by reference to precedents established by other presidents, such as Reagan’s

bombing of Libya in 1986 to deter Libyan terrorism. Moreover, the Bush II administration was “in the business of creating executive power precedents,”

which means that future presidents may build upon those historical precedents to expand their powers. (Savage, 2011)

Koh used his analysis of the national security constitution to support his contention that the whole area of foreign policy-making, including war powers, was based upon the principle of “balanced institutional participation,”

meaning that all three branches of government had roles in foreign relations.

(Koh, 1990: 72) Most foreign relations decisions fall into the sphere of concurrent authority, which the president manages, subject to checks provided by congressional consultation and judicial review. The system designed by the Framers depends upon balanced participation by all three branches of government, but since U.S. involvement in Vietnam, the system has been dominated by the executive branch. Koh used the Iran-Contra affair to illustrate his broader point that unless all three branches of government participated in the process of foreign policy making, more executive branch mistakes like Iran-Contra were inevitable. For Koh, the Iran-Contra affair was a symptom of the failures of the foreign policy process, not an aberration stemming from overzealous executive branch officials.

The Pattern of Foreign Policy Making: Executive Initiative

An important element of Koh’s theory about the national security constitution is the pattern of executive initiative, congressional acquiescence, and judicial tolerance regarding the contemporary process of foreign policy in

the U.S. This section explains the pattern, how it relates to the topic of this thesis, and suggests how the analytical method will be applied to the four administrations in the study in subsequent chapters. Executive initiative refers to the tendency of modern American presidents to initiate action in foreign relations due to the nature of the office, i.e. the president is elected nationally and expected to take the lead regarding foreign affairs. Unlike Congress, which is bicameral and composed of many individual members with various constituencies, the president is well-situated to drive the process of foreign policy making. He controls the various intelligence agencies and thus, possesses superior knowledge about foreign relations and the Constitution makes him Commander-in-Chief of the military. In addition, the President, unlike Congress, may act quickly in response to a crisis and, after the crisis, he speaks with one voice in articulating the policy justifications to the general public. As one former executive branch staffer put it, “unilateral executive action has advantages in surprise, speed, and secrecy.” (Baker, 2007: 25)

There are several theories that executive branch officials rely upon to justify uses of force without explicit congressional authorization. For instance, one way to justify the use of force is to distinguish between offensive and defensive resorts to force. If the President is using force defensively to protect the country, instead of offensively, then the President may unilaterally use force without prior congressional authorization. (Baker, 2007: 179) Of course, according to this school of thought, an offensive use of force would still require authorization from Congress. Another theory is that, while only Congress may

“declare” war according to the Constitution, uses of force short of a “war” may be authorized by the President alone; several Presidents utilized this theory to

argue that they did not need a formal declaration of war prior to initiating hostilities. According to Louis Fisher, one of the interviewees, a thorough review of the history of the drafting of the Constitution reveals that the President’s unilateral ability to use force is limited to the narrow circumstances of imminent danger to American lives, or an actual attack on the U.S. For Fisher, the Framers of the Constitution “gave Congress the power to initiate war” because they feared entrusting the executive branch with such an important decision. (Fisher, 2004: 10) The Framers’ expectation was that requiring Congress to declare war would impede any rush to war advocated by the executive branch for its own purposes.

The War Powers Resolution

When the President takes the initiative in foreign relations, he “has often done so by construing laws designed to constrain his actions as authorizations.” (Koh, 1990: 117) The best example of this is the War Powers Resolution (WPR), which became law in 1973 despite President Richard Nixon’s veto. The WPR grew out of public and congressional discontent with the conduct of the executive branch in Vietnam and Cambodia, where President Nixon secretly ordered aerial bombing without disclosing the use of force to the public or Congress. Vietnam was the result of incremental increases in the number of troops in Southeast Asia, under the authorization of the Gulf of Tonkin Resolution in 1964. Ely noted that Congress did authorize the Vietnam War, but it was done “backhandedly,” enabling Congress to avoid “serious consideration of the consequences of its actions.”

(Ely, 1993: 47) Although the WPR was intended to constrain the executive

branch and re-establish congressional control over war powers decisions, in practice it has not worked as intended. Some critics contend it gives the executive branch too much discretion to use military force without meaningful input from Congress, while others maintain that it impinges upon the President’s powers as Commander-in-Chief. A brief review of its provisions is necessary because, according to U.S law, the President must have legal authority to use force. In theory, the WPR could be a constraint on the executive’s use of force against international terrorism, but an evaluation of the four administrations reveals it is more of an equivocal constraint.

The stated purpose of the WPR is “to fulfill the intent of the Framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of U.S.

armed forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” (WPR resolution, see Fisher, p. 290) The WPR explicitly requires both consultation and reporting;

section 3 requires that the President “in every possible instance shall consult with Congress before” introducing troops into hostilities. The “consultation”

with Congress regarding the use of force as counterterrorism has become a pro forma notification in which the President informs a limited number of members of Congress shortly before the incident. This was the pattern in Libya in 1986 (Reagan administration) and in the 1998 missile strikes in Afghanistan and Sudan (Clinton administration). If the legislature intended the consultation requirement to be a real check on executive branch uses of force, the experience of the four administrations indicates the consultation is neither

a meaningful exchange of views, nor a timely check on executive branch action.

The second condition of the WPR, reporting, requires the President to report to Congress within forty-eight hours after introducing U.S troops into

“hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” A report submitted according to section 4 of the WPR triggers the “sixty-day clock” which means the “President shall terminate any use of U.S. Armed Forces” unless Congress has declared war, or enacted specific authorization, or granted the President an extension. On paper, this might appear to constrain the executive branch but, in practice, the executive branch does not indicate under what section of the WPR a report is filed, and thus avoids the problem of the sixty-day clock. In fact, only President Ford has cited section 4 of the WPR in a report, and that occurred in 1975 when the U.S. used force to rescue the crew of the U.S. merchant ship Mayaquez. (Fisher, 2004: 156) In this manner, the executive branch avoids potential problems with the sixty-day time limit on troop deployments.

Since it was enacted in 1973, every “President has taken the position that it is an unconstitutional infringement by the Congress on the President’s authority as Commander-in-Chief.” (Grimmett, 2012: 1-2) However, the executive branch still writes Congress a report “consistent” with, but not

“pursuant” to, the WPR, indicating the President and his advisors do not feel legally obligated by the law to report the introduction of troops into hostilities.

(Baker, 2007: 184) According to Baker, a former legal advisor to the National Security Council, the majority of WPR reports to the Congress are

“inconsequential and ministerial, even pro forma.” (Ibid) During the second Bush administration, when Special Forces teams were deployed globally to hunt members of al Qaeda, the WPR reports for Congress adopted “broad generalizations that avoid secrecy concerns” and afforded President Bush

“maximum flexibility.” (Baker, 2007: 185) During the course of his two terms, President George W. Bush submitted 39 WPR reports to Congress.

The Congressional Research Service identified three problems with the WPR. The first is the disputed nature of the word “hostilities” for purposes of triggering consultation between the President and Congress. The second concerns the definition of “consultation” and the propensity of the executive branch to interpret that as merely informing Congress shortly before the use of military force. The third problem is who represents Congress for the required consultation: a few senior members, or should it encompass the entire Congress? (Grimmett, 2012: 22) It is beyond the scope of this research to evaluate whether the WPR would prevent another creeping military intervention such as Vietnam. Clearly, when the WPR was passed in 1973, the U.S was not threatened by transnational non-state terrorists and so Congress did not contemplate this type of national security threat in the statute. For the purposes of the current topic, the use of force in counterterrorism, the evidence of the four administrations reveals the requirements of the WPR were not a constraint on executive branch freedom of action.

Applying the concept of executive initiative to the area of counterterrorism, the use of drones for discreet military operations illustrates

Koh’s point. Drones, unmanned aerial vehicles, were first used by the Clinton administration for intelligence purposes. Various accounts detail the evolution of drones from intelligence-gathering capabilities to lethal weapons. (Coll, 2004, O’Connell, 2010, and Gellman, 2002) Cofer Black at the CIA advocated arming them at the end of the Clinton administration to fly missions against al Qaeda in Afghanistan, but “State Department lawyers objected, arguing that an armed drone might violate the Intermediate Nuclear Forces Treaty, which banned the United States from acquiring new long-range cruise missiles.”

(Coll, 2004: 531) After the 9/11 attacks, the American public expected the executive branch to take strong action against terrorists and the Bush II administration began using drones equipped with missiles against suspected terrorists in the autumn of 2001. Congress did not vote on the decision to arm drones for military strikes. Instead, the Bush II administration calculated that using them was lawful because the Congress had appropriated the funds for drones and passed a broadly worded Authorization for Use of Military Force against those involved in the 9/11 attacks. As explored in the chapter on the second Bush administration, the executive branch relied on the Authorization for Use of Military Force for many of its more controversial practices during the

“war on terror.”

Moreover, using armed drones in brief, discreet military operations avoids potential conflict with the WPR because no ground troops are involved and the use of force is executed quickly. Congress and the general public typically find out about the drone strike after it is over. As the author of The Costs of Counterterrorism, Laura Donohue, explained during an interview with

Moreover, using armed drones in brief, discreet military operations avoids potential conflict with the WPR because no ground troops are involved and the use of force is executed quickly. Congress and the general public typically find out about the drone strike after it is over. As the author of The Costs of Counterterrorism, Laura Donohue, explained during an interview with