The War Power and Its Limits

The War Power and Its Limits

by NANCY KASSOP

Presidential Studies Quarterly, September 2003, volume 33, issue 3, pages 509-529

On March 20, 2003, the day after President George W. Bush initiated the war against Iraq, the following exchange occurred between a reporter and White House Press Secretary Ari Fleischer:

"QUESTIONER: Could you amplify a little bit on how the president is mobilizing the powers of his office for war?

MR. FLEISCHER: I think if you were to put that question to the president, what he would tell you is, unfortunately, since September the llth of 2001, this has been a wartime presidency. The fact of the matter is that ... the war on terrorism began September 11th, with the attack on our country. And then the president has, unfortunately, been in the position of authorizing the use of force to protect our country in the actions against the Taliban and the al Qaeda.

This (the war against Iraq) is a continuation in many ways of that effort, because at its core, the president's concern is protecting the American people from the Iraqi regime's possession of biological or chemical weapons, which they could pass on to terrorists, who, if they could, would use them against us in our country.... So, that is the president's approach to this" (Fleischer, 2003).

Fleischer's description of President George W. Bush's approach to the war on terrorism is deadly accurate. In the past two years, the president has never tired of noting how his worldview changed after the terrorist attacks of September 1lth, and how that event galvanized his will in a single-minded and dramatic way. It prompted him to focus his presidency on the urgent and unparalleled need to protect the physical integrity of the nation from any future attacks. By characterizing the September 2001 attacks as "acts of war," where war had been declared upon the U.S. by Al Qaeda terrorists, he termed himself a "wartime president," and looked to the authority that flows to presidents during such periods (Von Drehle 2003, A22). In defining that war as a "continuing threat," he set in place a network of laws and policies of expansive scope and uncertain duration. Unlike previous wars that ended with a definitive peace agreement or treaty or surrender, the war against terrorism is not likely to correspond to such definable finality. Moreover, because, in large part, the broadest sweep of these policies applies domestically, there is a magnified concern for any appreciable lack of limits. Wartime is not kind to liberties, and restrictions on personal freedom for reasons of national security have a notorious reputation for overstaying their welcome, long past the termination of the crisis. When that termination itself is unclear, these risks to liberty become even greater.

President Bush also never refrains from reminding his audiences that "It's a different kind of war. It's a war that is not measured by the destruction of tanks, or ships, or aircraft, because we're fighting a different kind of enemy. This is a war that is measured in terms of killers caught" (Republican Governors Association 2002). That mixture of metaphors--"war," on the one hand, "killers," on the other--speaks volumes to the duality of the way this effort has unfolded (Roth 2002). More than just the correct metaphor is at stake here, for there are very real distinctions as to how a government conducts itself, depending on whether it engages in a war under the jurisdiction of the military, or in criminal prosecutions within the judicial system. In fact, the Bush administration has pursued both in its efforts to uproot and eradicate international terrorism, and has fused the two into what might be termed the "militarization of law enforcement," with the "war" on terrorism furnishing the predicate for both military action abroad and aggressive prosecution of terrorist suspects at home.

Introduction

All presidents view their responsibility to protect their citizens and their nation from hostile attack as the most solemn duty of the office. Nothing matters more than this profound obligation. With the trust of the nation placed in the chief executive during the most uncertain of times, the temptation for officials to expand their power and push beyond the boundaries of their constitutionally delegated authority increases proportionately to the level of the threat. It is precisely because the nature of the threat of global terrorism is so all encompassing and so unpredictable in its targets and its acts that leaders fashioning a national strategy to counteract it effectively might assume the need for drastic policies that would otherwise be unthinkable in less urgent times.

How, then, can a government, built on the foundation of limited powers, meet the challenge of a ruthless opponent for whom there are no limits to the extent of horror it will inflict? Can a system, conceived in eighteenth century values, survive the twenty-first century version of warfare?

Early results are not encouraging. On a variety of fronts, the Bush administration has relied on the president's commander-in-chief authority and broad powers granted to the chief executive, upon his request, by Congress to centralize decision making in the executive branch to an unprecedented degree. As the most direct consequence of this approach, the checking and balancing functions of other institutions have been marginalized (Lardner 2001, A22; Bettelheim 2002; Sanger 2002, 4.1). In the anti-terrorism cases that have started to work their way through the federal courts, government briefs are replete with assertions of a greatly reduced role for the judiciary during times of war (Lane 2002a, A01; Liptak et al. 2002, A01). The administration has also succeeded in gaining hasty passage of exceedingly permissive resolutions from Congress that leave critical decision making to the president's discretion, without clear guidelines, in the Authorization for Use of Military Force (September 18, 2001) and the Authorization for Use of Military Force Against Iraq (October 16, 2002), and it rushed the controversial, 342-page USA PATRIOT Act (October 26, 2001) through Congress without any public hearings or meaningful debate. It has crafted and imposed policies that put a premium on secrecy, and has left little doubt that it operates under the assumption that no tactic by the U.S. in the war against terrorism, including torture and preemptive military action, is too excessive (Hersh 2002, 66; Priest and Gellman 2002, A01; Risen and Johnston 2002, 36).

The fundamental inquiry into whether the Bush administration's responses to the September 1lth terrorist attacks respected constitutional limits requires examination of the legal record it established and the justifications it offered. Such a review leads to three preliminary observations that can be deduced from the documentary evidence: that the administration's antiterrorism policies have (1) created a blurring of distinctions between military action and law enforcement, along with a resultant uncertainty as to which set of standards applies in certain circumstances; (2) rejected judicial oversight; and (3) manifested a disregard for Congress, or manipulated it when it suits the president's needs, as evidenced by the haste with which use-of-force and antiterrorism legislative proposals were pressed upon Congress, only to later prompt second thoughts by some legislators as to the scope of what they had done. The common thread that connects all of these is the centralization of war policy-making power under presidential direction, involving critical line-drawing and distinction making: at bottom here is the issue of "who decides" and who gets to draw those lines and make those distinctions (Roth 2002; Sanger 2002, 4.1). On one issue after another, it is clear that vast new powers have been swept into the presidency on the heels of this "permanent crisis," where that institution claims for itself alone this line-drawing authority, resulting in the diminution of the ability of the other two branches to hold the executive accountable.

This expanded executive authority, born out of crisis, has dovetailed seamlessly with an administration that has made no secret of its preference for unilateralism as an operative governing principle: executive branch primacy in the domestic sphere and the eschewing of traditional allies and international organizations and rules in the foreign policy arena. Driving this desire for enhanced executive power, at least in the domestic field, is the belief offered by Vice President Cheney that recent past presidents were too quick to relinquish some presidential prerogatives (e.g., executive privilege), and he considers it the responsibility of the current administration to reclaim those lost powers for the institution of the presidency (Bettelheim 2002). This administration has been candid in its frustration and criticism of congressional "micromanagement," and foreign policy making is an area in which presidents have always been protective, if not possessive, of their powers, even when there was no specific concern for congressional meddling. A wartime environment is the ideal setting (and timing) for such a strategy of fostering executive dominance, where there is already a natural tendency for power to concentrate in that branch.

Throughout history, presidents have taken actions during wartime that were later deemed either unconstitutional or excessive, such as Lincoln's suspension of habeas corpus during the Civil War. (1) Typically, such excesses are scrutinized by other branches only after hostilities have ended. Again, the singular nature of the current threat of international terrorism leaves open ended here any determination of the point at which hostilities have ended. Thus, the potential for a creeping accumulation of power into the presidency at the expense of Congress and the courts is not idle speculation. Evidence of this prediction has already surfaced, most recently, when Justice Department officials proposed removing the 2005 sunset provision of the Patriot Act a full two years before it is due to expire and after only eighteen months of operation, and in the face of an unwillingness from the department to provide congressional committees with information to evaluate its operation to date (Lichtblau 2003, B1). Additionally, public discovery of a department draft of the Domestic Security Enhancement Act of 2003 (dubbed "Patriot II") provoked concern that, similarly, the department was requesting additional law enforcement powers without effective oversight of the very substantial authority it gained in Patriot I (Lane 2003, A01).

Presidents use their tools--declarations of emergency, commander-in-chief designation, executive orders, the bully pulpit, and broad delegations of power from Congress--to facilitate this enlargement. President Bush has relied on all of these sources of authority in his antiterrorist efforts. What follows here is an examination of a few of the major antiterrorism measures from the last two years that have added to the president's powers. These include the Authorization for Use of Military Force, the Patriot Act, the president's military order authorizing military tribunals for non-citizens (66 Fed. Reg. 57833), the administration's National Security Strategy, and the Authorization for Use of Military Force Against Iraq. When viewed as a comprehensive package, rather than as separate items, it may be possible to identify the outlines of a strategy of unilateralism, marked by the observations noted above: increased presidential power combined with decreased legislative and judicial oversight, and a blurring of distinctions between the military and law enforcement systems.

Perhaps the best means of demonstrating the unbounded nature of the Bush administration's approach to war is to review some of the key documents of war on which its position is founded, and to explore the language used in them and the political process that produced them. On both counts, there are always choices: (1) words are selected carefully, while alternatives are rejected; and (2) deconstructing the policy-making process can expose some of the incentives underlying it.

Authorization for Use of Military Force

Within one day of the terrorist attacks of September 1lth, 2001, the White House sent a request to Congress for a resolution authorizing the use of force in response to the attacks and against those who "planned, authorized, committed or aided the terrorist attacks ... or harbored such organizations or persons ..." (P.L. 107-40). The original version proposed by the White House was modified considerably in closed-door sessions between White House aides and the congressional leadership before finally coming to both houses for a vote.

The administration's draft bill contained language that authorized the president "to deter and pre-empt any future acts of terrorism or aggression against the United States." Although "preemption" would rear its head more successfully a year later in the National Security Strategy, it did not survive here, for a number of reasons. First, for Congress to authorize the president to take preemptive action would run contrary to the understanding of the Framers as well as the United Nations Charter that the president possessed authority to act defensively, but not offensively. Secondly, one congressional aide who participated in the executive-legislative negotiation sessions noted that "had this authority become law, it would have authorized the President to use force ... against (at least arguably) anyone who might be considering future acts of terrorism, as well as against any nation that was planning 'aggression' against the United States ... the President might never again have had to seek congressional authorization for the use of force to combat terrorism" (Abramowitz 2002, 73). The final version replaced "deter and preempt" with "deter and prevent," which is more consistent with a defensive, rather than an offensive, stance. Also, the "deter and prevent" language appears not in the body of the bill, as authorizing language, but as the last of four "Whereas" clauses, which are used not to authorize but as precatory or hortatory language. (2)

The next wording issue addressed the fact that the proposed version named no country, person, or group against whom it was authorizing the president to act. Although no limiting language was eventually adopted, the understanding among the negotiators was that the president's authority extended only to those responsible for the September 11th attacks and to any country harboring such people. Senator Biden emphasized in the brief Senate debate that "the authority granted is focused on those responsible for the attacks of September 11" (147 Cong. Rec. $9423).

Other issues concerned inclusion of a reference to specific statutory authorization under the War Powers Resolution, prior certification to Congress before any use of force by the U.S. that there was "specific and credible evidence" that the targeted country, organization, or person was responsible for the September 11 attacks, and reporting requirements beyond those in the War Powers Resolution. Of these three, only specific reference to the War Powers Resolution was added, while the certification and reporting requirements issues were never resolved. Addition of the section stating that this resolution constituted specific statutory authorization under the War Powers Resolution was an inclusion with substantive significance, tying the president to the subsequent reporting requirements of that act: omission of that reference by the White House in its original version was conspicuous in its absence, as it runs contrary to presidential precedent in recent uses of military force, despite the low esteem in which all presidents have held the War Powers Resolution. It is striking--and prescient--that the Bush White House excluded this reference in its first version, as a harbinger of its disregard for Congress's role in warmaking. Interestingly, certification and reporting requirements, along with a War Powers Resolution reference, were included, a year later, in the Authorization to Use Military Force Against Iraq.

Finally, one provision in the White House proposal was especially noteworthy for its unabashed usurpation of Congress's appropriations power: this was a request for appropriations from Congress in the amount that the president deemed necessary and a demand that these funds be freely available to him until they were expended (Abramowitz 2002, 81, n.9). In essence, the president demanded exclusive control over the amount and total discretion over how to spend these funds. On this issue, Congress rebelled. No funding was provided in the final version of the authorizing legislation, although appropriations were passed separately, designating $20 billion for immediate use for recovery from the attacks and for retaliation, while $20 million more would be available later and under Congress's control (P.L. 107-38). This same desire for complete autonomy over funding emerged again in April 2003 when the president requested supplemental appropriations to pay for the March 2003 war against Iraq. Congress actually agreed to provide him with more money than he requested, but refused to agree to the total discretion asked for by the administration, and also attached onto the bill additional provisions that President Bush had opposed. House Appropriations Chairman Bill Young stated clearly that "We did what the president asked . . . at the same time, we preserved some of the constitutional responsibility of the Congress to be involved in the appropriation, and to have some knowledge of how the appropriation was going to be used" (Firestone 2003, B1).

P.L. 107-40 was negotiated by the leadership on September 12, and passed the Senate, 98-0, on the morning of September 14, with debate occurring after the vote. House consideration later that day included debate and adoption by a vote of 420-1. The president's signing statement notes "the continuing threat to the United States and its citizens from terrorist activities," and reiterates, as have all post-1973 presidents in routine fashion, his understanding of the sufficiency of his constitutional power under Article II, even without an authorizing resolution from Congress, and his office's belief in the unconstitutionality of the War Powers Resolution (Statement on Signing the Authorization for Use of Military Force 2001).

USA Patriot Act

The USA Patriot Act was passed little more than a month after the terrorist attacks, and resulted in major changes in immigration law, the definition of terrorism, government surveillance, information sharing between law enforcement and intelligence agencies, and money laundering restrictions. It offers a prime example for examining many of the criticisms that have been leveled against the Bush administration's approach to the war against terrorism: that it rushed its proposals through Congress and bypassed routine legislative procedures, such as committee consideration; that it substituted administrative decision making for judicial oversight; and that it blurred the line between national security and law enforcement in order to facilitate the use of emergency powers to override normal processes. More pointedly, commentators have described it as setting in place an "alternative" or "parallel legal system"--one for terrorism suspects, based on secrecy and lack of basic rights, and another for garden-variety criminal suspects, with the usual panoply of due process protections we have come to expect (Lane 2002b, A01).

The 342-page law was a massive piece of legislation, providing a wholesale overhaul of law enforcement powers for federal authorities, with its primary objective to provide effective tools to detect, deter, and prevent terrorist attacks on American soil. Attorney General John Ashcroft echoed President Bush when he said, after hearing of the terrorist attacks, "Our world has changed forever" (Lichtblau and Liptak 2003, A01), and he operationalized that change in policy direction with the Patriot Act proposals that represented a clear shift in prosecutorial priorities from investigation to prevention. In an address to the Eighth Circuit Judges Conference in August 2002, Ashcroft declared that "the mission of the Department of Justice has been transformed from a focus on prosecution of illegal acts to a focus on the prevention of terrorist acts" (Bettelheim 2002). He also acknowledged the primacy that national security occupies for the Justice Department in an interview in early March 2003 with two New York Times reporters when he defended his controversial initiatives as being justified by the president's "constitutionally mandated defense of the United States" (Lichtblau and Liptak 2003, A01).

The Patriot Act passed both houses of Congress with lightning speed, though not fast enough for Ashcroft, who wanted it completed in a matter of days, rather than weeks. It bypassed most of the usual committee process in favor of high-level, closed-door, executive-legislative negotiations, leading some to speculate that the lack of a legislative paper trail may come back to haunt the law when the courts try to divine "legislative intent" in the inevitable challenges to it (Palmer 2001, 2533). It did receive some attention in the House Judiciary Committee, which marked it up on October 3, 2001, and passed a much-modified version, 36-0, but the bill on which the full House voted on October 12 contained a changed text (but same bill number) that had been secretly agreed to by Speaker Dennis Hastert (R-Illinois) and the White House, without any knowledge by the full committee. The Senate bill was negotiated by Judiciary Committee leaders with the administration, and never came before the full committee prior to the vote on the Senate floor (Palmer 2001, 2534; Brill 2003, 70). The final piece to this frenzy was the order by Senate Majority Leader Tom Daschle (D-South Dakota) to Russ Feingold (D-Wisconsin) to withdraw his amendments and fall in line behind the unanimous consent agreement, which permitted no amendments or debate (Palmer 2001, 2533-55; Tepker 2002, 9-13; Brill 2003, 66-71). The bill passed the House, 35766, on October 24, and cleared the Senate, 98-1 (Feingold against), on October 25. The president signed the bill into law on October 26, 2001.

As with the Authorization for Use of Military Force (P.L. 107-40), this second piece of wartime legislation was rushed through Congress in record time on the administration's plea for an unprecedented expansion of executive authority, justified by emergency conditions. Here, too, Congress was able to modify a few of the more extreme elements proposed initially by the administration (such as indefinite detention of any non-citizen the attorney general "has reason to believe may further or facilitate acts of terrorism" [O'Harrow 2002, W06]), and it succeeded in getting the executive branch to drop its absolute rejection of sunset provisions on some, but not all, parts of the law.

But it also served as a vehicle for prompting Congress to pass provisions that had been rejected in earlier times, such as authorizing government tracing of e-mail in the same manner as phones (O'Harrow 2002, W06). In that way, it offered a convenient rationale for expanding law enforcement authority in ways that would not have been possible during non-crisis periods. Some of the key provisions in this law include secret searches where notification of a suspect may be delayed if it would have an "adverse result" on the investigation; roving wiretaps that follow the person and not the phone; a single, nationwide warrant for terrorism-related searches, rather than separate warrants in each jurisdiction; detention for up to seven days of any non-citizen who the attorney general has reasonable grounds to believe is engaged in conduct threatening to national security (after seven days, the government must either charge or release the detainee, or, if held further, there must be a hearing every six months to review if the suspect continues to pose a national security risk); permission for law enforcement officials to give "foreign intelligence information" obtained from secret grand jury proceedings or from wiretaps to the CIA; permission for law enforcement officials to obtain wiretaps under FISA when a "significant" purpose, rather than the "primary" purpose, is for foreign intelligence gathering, thereby, breaking down the "wall" that had existed previously between the criminal justice and foreign intelligence systems (alarming critics who worried that law enforcement could abuse this opening by obtaining an intelligence wiretap without needing to show the required probable cause and use it, instead, for criminal prosecutions [Palmer 2001, 2534; Tepker 2002, 10-11]); and permission for federal officials to search business records with an administrative subpoena, rather than a court warrant.

At the same time that Congress and the administration were negotiating the Patriot Act, the Justice Department was promulgating rules that were equally as controversial, devised entirely within the executive branch, and implemented before the public comment period had expired (Bettelheim 2002). The first was an Immigration and Naturalization Service rule approved by Ashcroft on September 17, 2001 that permits indefinite detention of people with suspected immigration violations, although this rule was trumped with the enactment of the Patriot Act, which limited detention to seven days, with some qualifications, as noted above. The second was a Justice Department rule, issued on October 31, 2001, that authorizes government monitoring of lawyer-client conversations when there is "reasonable suspicion" that the lawyer may facilitate a terrorist act (Rovella 2001). Both of these rules prompted strong criticism; indefinite detention at a time when war has not been declared officially comes perilously close to being the suspension of habeas corpus, while monitoring of lawyer-client conversations provoked an outcry from the legal community as an overzealous restriction on the basic right to counsel.

The department has fanned further criticism with its detention of more than 1200 people in the aftermath of September 11 for violation of immigration laws, for being material witnesses to terrorism, or, as in the cases of Jose Padilla and Yaser Esam Hamdi, for being "enemy combatants" based on government suspicion that they have direct involvement with terrorist groups (Liptak et al. 2002, A01). Related to detention for immigration violations was the memo sent by Michael J. Creppy, the top immigration judge, to the nation's immigration judges, instructing them to close their courtrooms and take other precautions to keep secret any information about "special interest" immigration cases. The Third Circuit Court of Appeals ruled, 2-1, in October 2002 in North Jersey Media Group Inc. v. Ashcroft (308 F. 3d 198 [3d Cir. 2002]), overturning a lower federal court judge who had ordered all deportation hearings to be opened, unless the government made a showing, on a case-by-case basis, for the need to close them. The majority judges found that deportation hearings are administrative proceedings, conducted by the executive branch, and, therefore, are not analogous to judicial proceedings, which are presumptively open to the public. The dissenting judge found a qualified right of access to the hearings for the press and the public, and agreed with the district court judge that hearings should be opened, with exceptions only when the government can prove a need to close them. Judge Scirica, in dissent, wrote "At issue is not whether some or all deportation hearings of special interest aliens should be closed, but who makes that determination" (Duffy 2002). The Third Circuit's ruling conflicted with a Sixth Circuit decision, thus setting this issue on a probable course for Supreme Court review. As Judge Scirica noted, the fundamental issue here is where the authority lies to make the decision to close these hearings--with the executive or with the sitting judge. The government's position is unambiguous in removing that traditional power from the judiciary and handing it to the executive branch.

Military Order on Detention and Tribunals

President Bush's military order of November 13, 2001 addressed two issues: authority for (1) the detention of non-citizen terrorist suspects, and (2) the designation of those defendants who will be tried before military tribunals. As with the two statutes discussed above, this order also underwent some revision which, ultimately, modified and lessened some of its more controversial provisions. Unlike the two statutes, however, there was a lengthier period of time in which to consider changes, and there was more opportunity for reactions from the public and from legal professionals to play some role here (Blum 2001). The president authorized the secretary of defense to issue orders and regulations for the procedural rules by which these tribunals would be conducted, and those regulations were issued on March 21, 2002, four months after the president announced the military order (Military Commissions Order No. 1. 2002). Thus, that time lag allowed for reflection and public comment that, in fact, produced an outcome that many observers believed was a clear improvement over the initial order.

This order is an especially good example that illustrates all of the features identified above as the hallmarks of a unilateralist strategy in war policy making by a president that pushes the limits of the law. Here, the president used the executive law-making tool of a military order, relied partially on his commander-in-chief designation (but also on P.L. 107-40, on 10 U.S.C. 821, and on Procl. 7463, his declaration of a national emergency on September 14, 2001) for authority, provided final decision-making authority for the tribunals in the president or the secretary of defense, and sought no input from Congress. Many questions arose at the outset. First, there is some debate over whether the president possesses the constitutional authority to issue the order, at all, on his own authority and without delegation from Congress (Katyal and Tribe 2002, 1259). Second, the absence of any provision for judicial review in the civil courts, either of the designation of individuals as detainees or of the operation of the military tribunals, provoked concern about whether this amounted to a suspension of habeas corpus by the president alone. Third, the original order provided for closed, secret proceedings, an aspect that was reversed in the March 21, 2002 rules in response to sharp public criticism, and, now, trial proceedings are presumed open, unless the presiding officer decides to close them to protect classified information or the safety of witnesses, defendants, or commission members.

This order takes individuals charged with either (1) being a member of Al Qaeda, (2) being involved with terrorist acts, or (3) knowingly harboring a terrorist, and treats these offenses as against the law of war, rather than as criminal acts. At bottom, it is not entirely certain whether the military characterization is, in fact, the correct one. The November 2001 order prompted skepticism about both its legal sufficiency and political wisdom.

Legally, military lawyers questioned whether the "state of armed conflict" cited in the order referring to the September 1lth attacks is accurate. If a state of armed conflict existed, the law of war would apply. According to Scott Silliman, Duke University School of Law professor, "Article 21 of the Uniform Code of Military Justice (10 U.S.C. 821) is one of the very few places in our statutory law which specifically mentions military commissions, and that provision talks in terms of military commissions having jurisdiction over offenses that violate the law of war. It's an open question whether the terrorist attacks ... on September 11th actually constituted violations of the law of war, since I'm not sure that we can claim that we were in a period of armed conflict at that particular time" (Silliman 2001). Silliman contrasts attacks by a terrorist group with the attack on Pearl Harbor by a recognized state. He acknowledges that the September 1lth terrorist acts were, indeed, violations of the law of nations, or international law, but that raises the next question. Article I, Section 8, Clause 10 of the Constitution authorizes Congress, not the president, to define and punish offenses against international law (Silliman 2001). Thus, the legal status of the creation and use of military commissions on the president's sole authority is not a settled matter. Historical precedents in both Ex parte Milligan (1866) and Ex parte Quirin (1942) have left an uncertain legacy, and may not be directly comparable because there is no state of declared war at the present time, a factor that figured prominently in both of those earlier cases (Katyal and Tribe 2002, 1259). A close look at Quirin reveals a precedent with many unattractive qualities that are not worth repeating (Fisher 2003).

Furthermore, scholars and commentators observed that, even if the legal questions were resolved satisfactorily, the following vexing political issues remain: (1) would the use of trial by military commission instead of the U.S. federal courts (or in a court in another country or an international tribunal) send an unfortunate message that the U.S. courts were incapable of handling such cases (when, in fact, they have handled other terrorist cases successfully)? and (2) would not the use of military commissions by the U.S. and the lack of availability of constitutional due process rights to defendants in those trials undermine American credibility to challenge other countries' use of military commissions, thus, opening up American citizens overseas to the reciprocal risk of trial by military commissions in unfriendly nations? Critics point to the case of captured American citizen Lori Berenson in Peru as an actual example, where the U.S. has protested subjecting her to a military trial with few judicial safeguards, but its ability to lodge that or any similar protest would be weakened considerably if it engages in such trials itself (Oliphant 2001).

President Bush justified the transfer of authority from traditional law enforcement agencies to the secretary of defense to detain and try suspected terrorists on the following grounds:

   1.(e) To protect the United States and its citizens, and for the ...
   prevention of terrorist attacks, it is necessary for individuals
   subject to this order ... to be detained, and when tried, to be
   tried for violations of the laws of war....
 
   1.(f) Given the danger to the safety of the United States and
   the nature of international terrorism ... it is not practicable
   to apply in military commissions under this order the principles
   of law and the rules of evidence generally recognized in the trial
   of criminal cases in the United States district courts (66 Fed.
   Reg. 57833).

The rules of procedure for military commissions, as originally announced in November 2001, provided for conviction and sentencing, "upon concurrence of two-thirds of the members of the commission...." (66 Fed. Reg. 57833), but the allowance for the imposition of a death sentence with a less than unanimous vote immediately stirred public criticism. By March 2002, this provision had been changed to require "a unanimous, affirmative vote of all of the members" by a secret, written ballot in cases where a death sentence is imposed. Here, too, is an example where time for reconsideration and outside comment produced a less extreme outcome.

To date, there have been no military tribunals for terrorist suspects, although there are approximately 640 individuals currently being held in Guantanamo Bay who had either been detained after September 11th or captured during the military conflict in Afghanistan, and who have remained in legal limbo ever since. Because these are non-citizens, they are the most likely candidates for such trials. In early April 2003, the Defense Department announced that it was finalizing plans on the structure of these tribunals, on the military members who would serve on them, and on the list of war crimes that would be tried by them. Department officials also noted that additional military tribunals would be used for people charged with war crimes related to the war against Iraq.

The possibility of removing the federal conspiracy trial of Zacarias Moussaoui from a district court in Virginia to a military tribunal has also been raised, if procedural issues in the criminal trial threaten to obstruct and derail it, and if either the president or secretary of defense decides to designate him for a military tribunal (Markon 2003, A02).

Additionally, the current cases of Yaser Esam Hamdi and Jose Padilla, working their way through the federal court system, raise related questions about the designation by the military of U.S. citizens as enemy combatants and brought to trial in the federal courts. Because both Hamdi and Padilla are U.S. citizens, they are not subject to the November 13th order. Instead, the government maintains in its briefs that it may indefinitely detain them as unlawful combatants for the duration of the hostilities and that neither is entitled to see an attorney. Both filed petitions for writs of habeas corpus, challenging the lawfulness of their detention. The Southern District Court of New York ruled in Padilla v. Rumsfeld on December 4, 2002 that the defendant was entitled to meet with his lawyers and that the government must show "some evidence" that his detention was justified (02 Civ. 44445). The Fourth Circuit Court of Appeals ruled in Hamdi v. Rumsfeld on January 8, 2003 that the government was justified in its detention of the defendant, and that it was not required to produce any additional evidence, other than a Defense Department affidavit known as the Mobbs declaration, to support it (02-7338). Judge Wilkinson of the Fourth Circuit was expansive in his explanation of the president's powers--and restrictive in his explanation of the judiciary's powers--in his decision:

   The constitutional allocation of war powers affords the President
   extraordinarily broad authority as Commander in Chief and compels
   courts to assume a deferential posture in reviewing exercises of
   this authority. And, while the Constitution assigns courts the duty
   generally to review executive detentions that are alleged to be
   illegal, the Constitution does not specifically contemplate any
   role for courts in the conduct of war, or in foreign policy
   generally (Hamdi v. Rumsfeld, 02-7338).

To write the courts out of foreign affairs generally and during wartime specifically simply does not square with either history or the understanding of the Framers, who never expected that the Constitution, and the courts who interpret it, would be disabled during times of war. Courts have interpreted the constitutionality of powers used by presidents and Congress during hostilities many times before in history. (3) To dismiss with a broad brush the ability of the judicial branch to review governmental actions simply because the subject matter is foreign policy or war overlooks past precedents and suggests a view that is uncomfortably at odds with basic principles of constitutional government.

National Security Strategy

A year after the terrorist attacks, the Bush administration rolled out its new vision of a national security strategy for the country. There had been rhetorical evidence over the preceding year of what would ultimately appear in this comprehensive document, released on September 20, 2002. (4) Three months earlier, President Bush's June 2002 commencement address at West Point Military Academy presaged much of what he would formalize in the official document. His West Point address contained the following passages:

   "In defending the peace, we face a threat with no precedent."
 
   "For much of the last century, America's defense relied on the
   Cold War doctrines of deterrence and containment.... But new
   threats ... require new thinking. If we wait for threats to
   fully materialize, we will have waited too long."
 
   "... the war on terror will not be won on the defensive. We must
   take the battle to the enemy, disrupt his plans, and confront the
   worst threats before they emerge."
 
   "And our security will require all Americans ... to be ready
   for preemptive action when necessary to defend our liberty and
   defend our lives" (West Point 2002).

Then, two weeks before releasing the new strategy document, Vice President Cheney and Secretary of State Colin Powell made the rounds of the Sunday morning talk shows and reinforced the president's West Point remarks, and applied them specifically to the growing likelihood in early September of a war against Iraq. After asserting that Saddam Hussein had sped up his biological weapons production and was "actively and aggressively" seeking a nuclear bomb, Cheney stated that "we believe the United States will become the target of those activities." Powell stated that "The president will retain all of his authority and options to act unilaterally to defend ourselves" (Lindlaw 2002).

The president's National Security Strategy covered a broad range of topics, but the one portion that garnered the most attention was "Section V: Prevent Our Enemies from Threatening Us, Our Allies and Our Friends with Weapons of Mass Destruction," where the president laid out his theory of preemption and also linked together terrorists and rogue states as the two types of enemies from which we had most to fear. One can easily see that he was laying the predicate for attacking Iraq, with its arsenal of weapons of mass destruction that could get into the hands of terrorists and threaten the U.S.

   "We must be prepared to stop rogue states and their terrorist
   clients before they are able to threaten or use weapons of mass
   destruction against the United States and our allies and friends."
 
   "The inability to deter a potential attacker, the immediacy of
   today's threats, and the magnitude of potential harm that could
   be caused by our adversaries' choice of weapons, do not permit
   that option (a reactive posture). We cannot let our enemies strike
   first" (National Security Strategy 2002).

President Bush noted that there was international legal recognition for a nation to take preemptive action to defend itself against an imminent attack. He explained that, in the past, an imminent attack was most likely to be a visible one--invading armies or navies appearing on the horizon--and that international law tied the legitimacy of preemption to the imminence of the threat. But, "we must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries," who use weapons and actions that have no warning.

At issue here was the most fundamental question regarding just how urgent--and imminent--the threat needed to be, under international law, for a nation to act legitimately in advance of an actual attack. William H. Taft, IV, the State Department Legal Adviser, addressed this issue at a forum in November 2002, echoing some of the president's comments, but also setting the question within the context of international law principles and defending the president's position. He stressed that the concept of preemptive action in self-defense is not new, and that it was one of the sources of authority, in addition to the Rio Treaty and Article 51 of the United Nations Charter, on which President Kennedy relied in the Cuban Missile Crisis of 1962. A common reference in this debate is the famous 1837 Caroline case in international law, which articulated the required preconditions for the use of armed force for purposes of what was termed "anticipatory self-defense." These preconditions were outlined in correspondence between Daniel Webster, Secretary of State, and two British diplomats, where Webster itemized them as the following: "a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation" (The Caroline Case 1837). Taft emphasized in his remarks that the focus was on both urgency and necessity, and one needed to fold those concepts into the inherent right of self-defense under the U.N. Charter. Today, that right under the charter, he maintained, must include the right to take preemptive action once a nation recognizes that a first strike from an enemy could be of such a magnitude that there might be no ability to respond (Taft 2002).

The strategy of preemption did not have to wait long for its operational debut, as it was the prime justification for the president's decision to attack Iraq on March 19, 2003. Yet, the strong public, as well as international, opposition to that war makes clear that there was substantial skepticism over just how "imminent" was the likelihood that Saddam Hussein would use his weapons of mass destruction against the U.S. or that he possessed such weapons at a current level of readiness to be able to sell them to terrorists who might then target the U.S. As a factual matter, we may never know the answer to that question. In fact, that may not have been the question that the administration considered determinative. Rather than charging Hussein as an "imminent" threat against the U.S., a charge that would be extraordinarily difficult to prove without some overwhelming credible evidence which never materialized, President Bush changed the standard, and spoke frequently--and, most significantly, at his September 12, 2002 speech at the United Nations--of the "grave and gathering danger" posed by Hussein's regime. In a White House that stays "on message," that became the prime characterization of the danger assessment posed by Iraq.

But scholars and others responded that "grave and gathering" is very far from "imminent" or "urgent" as a means to justify destroying a regime that, though menacing, had not actually threatened to attack the U.S. Joseph Nye, Jr., dean of the Kennedy School of Government at Harvard University, weighed in, "The big question on preemption is how clear and how present is the danger. A 'grave and gathering danger' is not the language classically used for preemption" (Kessler 2002, A01). One international lawyer agreed with preemption as a valid theory, but cautioned that it required "a very, very high factual threshold" (Greene 2003, 16).

By the time of Congress's resolution authorizing the president to use military force against Iraq, the language had moved from "grave and gathering danger" to a "continuing threat" as a way for the White House to reduce the threshold for the use of force (Martinez 2002, 2675). But to Senator Carl Levin, as chair in October 2002 of the Armed Services Committee, "international law has never, never gotten to the point where anything less than imminent threat was used as being sufficient," and he cautioned that the "continuing threat" threshold could be applied to many other nations that either possess or are in the process of developing weapons of mass destruction (Martinez 2002, 2675).

Iraq Resolution

The resolution that Congress passed on October 16, 2002 authorized the president to "use the armed forces of the United States as he determines to be necessary and appropriate ... to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq." It would take five months and a tortuous tale of both successful as well as failed international diplomacy (U.N. success on the first resolution, U.N. failure to adopt a second one) before the congressional resolution became operative and before the U.S. launched a military attack against Iraq. But the focus here is on the adoption of the congressional resolution, and on whether it has any significance in the larger scope of the permanent war that began in the aftermath of September 11th.

That significance can be examined from two dimensions: first, the political dynamics in both houses that ultimately led to an overwhelming vote of bipartisan support and the open-ended nature of the language that permits a president, for the first time, to make war at a time and under circumstances of his own choosing ("as he determines to be necessary and appropriate"); and second, the more revealing, behind-the-scenes story in The Washington Post in early January 2003 that reported that the plan to invade Iraq had been established quietly inside the White House less than a week after the attacks of September 1lth, a full two and a half years before that plan would come to fruition, but signifying, nevertheless, that a presidential decision had been made, and that the will and the intent to carry it out had never been in doubt. To the public, however, the unfolding of the road to Iraq appeared as a genuine series of fits and starts and good-faith, incremental steps with an uncertain outcome, with the slim hope that war might somehow still be avoided. In fact, to the White House, the endgame here was never in question, although the public never knew that.

A review of both dimensions--the congressional process and the Washington Post article on the administration's strategy--will expose evidence that strengthens the case that a president in a time of permanent war is in an unparalleled position to exploit his prerogatives and rule unilaterally.

The drafting of the use-of-force resolution began during the summer of 2002 in the office of White House Counsel Alberto Gonzales, who used the 1991 Gulf War resolution as a frame of reference but expanded it well beyond that to incorporate the preemption doctrine (Bumiller 2002, A22). Gonzales claimed that President Bush could go to war against Iraq without additional congressional authority, but the arguments by the White House Counsel's office were strained and unconvincing (Fisher 2002, 34). By the time Congress returned in the fall, the issue of a possible war against Iraq was in the air and gained force with President Bush's September 12th speech to the United Nations, laying down an ultimatum to Hussein. By September 30, the administration had reached a compromise resolution with the House, which voted 296-133 to pass it, on October 10th. Later that day, the Senate voted 77-23, to give its approval.

But there was ambivalence among many members, who worried about the precedent of handing authority to the president to start a preemptive war. That worry was countered by the possibility, with varying degrees of remoteness, that Hussein might, in fact, launch an attack against the U.S. Hovering over the entire process was pressure from the White House for Congress to pass a resolution before the midterm election recess. The time pressure was, comparatively speaking, not as extreme as with the Patriot Act or the Authorization to Use Military Force, and there were three days of debate this time in the House and five in the Senate. But questions about "why Iraq?," "why now?," "why unilaterally?," and "why if we cannot find weapons of mass destruction?" persisted, with answers that many found unsatisfying. As Thomas Mann of the Brookings Institution explained it, "the president has run a successful campaign to win a vote. The president has not persuaded the public or the Congress that a full, careful, cost-benefit analysis has been done and that this is the wisest course to follow" (Martinez 2002, 2673).

The weakest administration argument was its insistence on an Al Qaeda-Iraq link. In the run-up to war in March 2003, the State Department strove valiantly to make that case, claiming that "the use of force against Iraq is fully consistent with United States efforts in the international war against terrorism," and that "Iraq continues to harbor and aid international terrorists..., including organizations that threaten the safety of United States citizens. The use of military force to remove the Iraqi regime is therefore not only consistent with, but is a vital part of, the international war on terrorism" (Washington File 2003).

Perhaps the most striking features of the authorizing resolution are that it combines and endorses two principles contrary to the Constitution: (1) presidential unilateralism in warmaking, and (2) preemptive action that amounts to an offensive use of force. In an incisive comment that jointly addresses both of these principles, Jack Rakove of Stanford University remarked in an op-ed piece that "the case for unilateral presidential authority loses all force when our intention to take military action has already been declared far in advance. Nothing in the Constitution or the history of its adoption suggests that a president can carry the nation into war when Congress has time for deliberation" (Rakove 2002). He is correct on both counts: the Constitution leaves the warmaking decision to Congress, although here, Congress chose to divest itself of that decision--a choice that is, on its own merit, contradictory to the Constitution; and the conditions under which President Bush asked Congress to authorize him to use preemptive action, that is, in "anticipatory self-defense," are, as Rakove notes, utterly at odds with the international law understanding of that concept, which demands conditions of urgency, necessity, "and no time for deliberation," not advance approval for a blanket military action at some point in the future (Rakove 2002, 4.13).

Finally, in an extraordinary piece of investigative reporting culled from interviews with more than twenty people who participated in the administration's decision making on the war against terrorism, Glenn Kessler's article in The Washington Post in early January 2003 puts in stark perspective just how much decision-making power the president has pulled into the White House from this campaign against terrorism, and how much power Congress has lost in a system where power exists in a finite equation: when one gains, the other loses.

Within six days of the September 11th attacks, President Bush signed a top-secret directive that spelled out the plan to root out international terrorism. It included preparations for military intervention in Afghanistan against Al Qaeda and the Taliban, but it also contained an order to the Defense Department to start planning for a possible invasion of Iraq (Kessler 2003, A01). Here, at the very beginning of the administration's planning against terrorism, Iraq figured prominently. Thus, the link in the president's mind between Iraq and terrorism had been present, right from the start, though not revealed, as such, to the public.

Kessler writes that "the previously undisclosed Iraq directive is characteristic of an internal decision-making process that has been obscured from public view. Over the next nine months, the administration would make Iraq the central focus of its war on terrorism without producing a rich paper trail or record of key meetings and events leading to a formal decision to act against President Saddam Hussein....Instead, participants said, the decision to confront Hussein...emerged in an ad hoc fashion. Often, the process circumvented traditional policymaking channels as longtime advocates of ousting Hussein pushed Iraq to the top of the agenda by connecting their cause to the war on terrorism" (Kessler 2003, A01).

There have been other reports of support among administration hard liners in the Vice President's office and in the Defense Department for removal of Hussein and for tough tactics against Iraq. But Kessler reveals how these advocates impressed upon the president immediately after September 1lth the connection between terrorism and Iraq, and says that "they believe that Bush understood instantly after September 11th that Iraq would be the next major step in the global war against terrorism, and that he made up his mind within days, if not hours, of that fateful day" (Kessler 2003, A01). As the quote by Ari Fleischer in the beginning of this essay noted, for President Bush, everything changed after September 11th.

The chain of events that leads from September 2001 to March 2003 comes into clearer focus when information from Kessler's article is combined with other evidence along the way. He notes that there were meetings of the "principals" during late fall 2001, where Rumsfeld and Cheney strongly suggested that ties existed between rogue states, such as Iraq, and terrorists, a point that would surface in the National Security Strategy a year later. By November 2001, plans for an attack against Iraq were being developed by the Defense Policy Board at the Pentagon and a retired Army general working in the White House. In January 2002, the president's State of the Union message carried the unmistakable warning to the "axis of evil" nations of Iraq, Iran, and North Korea that he would "not wait on events, while dangers gather" (State of the Union 2002).

Kessler reports that sometime over the next couple of months, the president signed a secret intelligence order that authorized the CIA to conduct a covert program to remove Hussein, including the authority to use lethal force against him. By April, the president revealed to National Security Adviser Condoleeza Rice and to a British reporter that he had made up his mind that Hussein could no longer remain in power. On June 1, President Bush's address at West Point lays out his preemption doctrine and his resolve to use it. Over the summer, he directs his White House Counsel to prepare a congressional resolution authorizing him to use force against Iraq. By September, in the National Security Strategy, he connects the preemption doctrine as a strategy to use against rogue states and terrorists--and has already embarked upon negotiations with Congress on a compromise resolution, with passage completed in early October.

When viewed this way, the picture becomes clearer as to how the policy toward Iraq evolved. But the larger point here is that a process that developed in secret among only a handful of administration officials and that cut Congress out of a process that its participants did not believe required legislative input or approval, made it more difficult to justify and to convince the public later of its merits.

Conclusions

The five measures examined here in the president's war against terrorism provide a window into the administration's strategy against an elusive and shadowy national security threat. That the Bush White House chose to rhetorically characterize its campaign as a "war" is indicative of its desire to frame the issue as one in which it will control all decision making. Thus, the "who" question in so many of these crucial matters, domestic or foreign, either by congressional delegation or by administrative design, redounds back to the White House and to top executive branch officials (e.g., "who decides" on which suspects will be tried by military tribunals, which suspects will and will not have the right to confidential meetings with counsel, when it is necessary for the U.S. to use military force against an enemy to "deter and prevent ... international terrorism," which individuals will be detained indefinitely on suspicion [but not proven evidence] of contact with terrorists, and which nations the U.S. may choose to attack militarily on the speculation that they possess the capacity to produce weapons of mass destruction).

The flip side of this centralization of policy-making power is the drainage of authority from the other two branches. Congress's participation in the formulation of the Patriot Act and the two resolutions authorizing the president to use military force was far more limited than usual, and its routine legislative procedures were jettisoned in the interests of expediency and administration pressure, at least in the passage of the Patriot Act and the September 2001 resolution. The Patriot Act transfers power from the courts to the Justice Department, while it also infuses national security and intelligence-gathering considerations into domestic law enforcement processes. The president's military order on detention and tribunals shifts authority from the courts to the Defense Department and the president to make unreviewable decisions of a judicial nature. All of the final versions of these policies were moderated slightly, either by Congress, in the case of the three laws, or in response to criticism from legal professionals, as in the military order, but that revision process did not substitute for a careful and deliberative legislative undertaking, especially in matters of such consequence and of indefinite duration. The National Security Strategy was "hatched" inside the executive branch, without any similar moderating influence.

There are legitimate causes for concern about centralized policy making on such a large scale and across multiple policy areas. First, this is a "war" with no easily identifiable foe nor any agreed understanding of what would constitute decisive defeat of the enemy and termination of the threat. Second, the campaign against terrorism is a comprehensive one that collapses foreign and domestic policies into a seamless whole in a way and on a scale as never before. Even a comparison with the Cold War and its domestic equivalents seems not to equal the breadth of governmental activity in this current effort. A preemptive national security policy abroad has its domestic analogs at home (indefinite detention of material witnesses, closed deportation hearings, secrecy over releasing names of detainees arrested after the 2001 terrorist attacks). Third, the "war" characterization is primarily a political one that happens to include a military component to it, when and where the president deems it necessary to use force (e.g., Afghanistan and Iraq), although it is not a war in the traditional sense. Harold Koh of Yale Law School describes it as a "politically declared but legally undeclared war" that brings with it inevitable complications when trying to mix the military and political worlds (Risen and Johnston 2002). Senator Leahy (D-Vermont) suggested that the war analogy is not the appropriate one here, noting that "where they (the administration) may make a mistake is talking about these terrorist events as if they were the equivalent of World War II" (Lane 2002b, A01).

A legally declared war, in fact, might have provided greater clarity--and probably, greater legitimacy--as to what policies a president may undertake and powers he may use because Congress, rather than the president, would have been the locus for such a determination. Perhaps the greatest weakness in the administration's establishment of a "permanent war" is that there is no independent governmental judgment, outside of the president who proclaims it, that "war" exists. If the Framers refused to give the president the power to declare a military war, it seems quite likely that they would never have consented to giving him the power to assert a far more comprehensive authority, where military activity is only one part.

Finally, it may be worth reviewing the words of Justice Jackson in Youngstown for guidance here:

   Nothing in our Constitution is plainer than that declaration of a
   war is entrusted to Congress. Of course, a state of war may in fact
   exist without a formal declaration. But no doctrine that the Court
   could ever promulgate would seem to me more sinister and alarming
   than that a President whose conduct of foreign affairs is so
   largely uncontrolled ... can vastly enlarge his mastery over the
   internal affairs of the country by his own commitment of the
   Nation's armed forces to some foreign venture. (5)

Unlike Truman, President Bush did not commit U.S. forces to "some foreign venture" (e.g., Afghanistan and Iraq) without first obtaining authorization from Congress. But there is no mistaking his "commitment of the nation ..." to a war against terrorism that carries with it domestic implications and "mastery over the internal affairs of the country" far greater than anything Jackson could have imagined in 1952.

(1.) Ex parte MiLligan, 71 U.S. (1 Wall) 2 (1866).

(2.) See 147 Cong. Rec. S9950-51 (daily ed., Oct. 1, 2001), for comparison of language in administration draft proposal with the final version of language in S.J. Res. 23 (EL. 107-40).

(3.) See, for example, Little v. Barreme, 6 U.S. (2 Cr.) 169 (1804); Ex parte Merryman, 17 Fed. Case No. 9487 (1861); The Prize Cases, 67 U.S. 635 (1863); Youngstown Sheet and Tube Corporation v. Sawyer, 343 U.S. 579 (1952); Mitchell v. Laird, 448 F.2d 611 (D.C. Cir. 1973); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973); Korematsu v. U.S., 323 U.S. 214 (1942). Moreover, when Justice Brennan listed in Baker v. Carr the categories of cases that would qualify as "political questions," and, thus, be inappropriate for courts to decide, he noted, also, in dicta that "... it is in error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance" Baker v. Carr, 369 U.S. 186, 211-12 (1962).

(4.) The document released on September 20, 2002 was the broad policy paper entitled "The National Security Strategy of the United States." Later that year, on December 10, 2002, the administration announced an even more explicit version of part of that strategy, issuing it in separate public and classified documents. The version of this policy that was released publicly in December stated that the U.S. would "respond with overwhelming force" to a chemical, biological, radiological or nuclear attack within its borders or on its troops or allies. That response included the use of "all of our options," raising the possibility that the U.S. might employ nuclear weapons in response to an attack from any of these types of weapons of mass destruction. The classified version of this December policy paper expands the range of possible uses of nuclear weapons by the U.S. by authorizing not only a "response" to an actual attack but, also, a preemptive use of nuclear weapons on states or terrorist groups that are about to acquire weapons of mass destruction. The purpose of this preemptive policy is to emphasize the critical importance the U.S. attaches to the halting of the transfer of weapons components between countries or groups. According to an unnamed participant in the creation of this policy, this change in approach was based on the failure of "traditional nonproliferation" and on the need to switch to "active interdiction." The appendix to this classified version identifies Iran, Syria, North Korea and Libya as some of the potential targets of this policy. See Mike Allen and Barton Gellman, "Preemptive Strikes Part of U.S. Strategic Doctrine," Washington Post, December 11, 2002, A01.

(5.) Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 579 (1952) (Jackson, concurring).

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Nancy Kassop is professor of political science and international relations at the State University of New York at New Paltz. Her recent articles include "The Power to Make War" in Katy Harriger, ed., Separation of Powers: Documents and Commentary (2003) and "The White House Counsel's Office," co-authored with Mary Anne Borrelli and Karen Hult, in Martha J. Kumar and Terry Sullivan, eds., The White House World: Transitions, Organization and Office Operations (2003).