From: Tanter Raymond[SMTP:rtanter@umich.edu] Sent: Wednesday, November 06, 1996 2:23 PM To: ps472@umich.edu Subject: FOR 11 NOV & 13 NOV, PS472LAW4.TXT VIA HOMEPAGE 472law4.doc November 6, 1996 National Security Law DETERRENCE THEORY AND LEGAL THEORY: FROM SCHELLING TO GLENNON Franck and Glennon, chapter 4, sections 1, 2, 3, 4. Mutual Security Treaties to which the U.S. Is a Party: 7 Rio Treaty: Reciprocal assistance to meet armed attacks against any American state. An armed attack against any American state shall be considered as an attack against all those states, and each undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self defense recognized in article 51 of the U.N. Charter (find U.N. Charter on World Wide Web). Measures of self-defense may be taken until the Security Council has taken measures necessary to maintain international peace and security. Meeker (514): Legality of U.S. Defense of Vietnam: IKEs warning that any renewal of communist aggression would be viewed as a matter of grave concern and as threatening peace and security, followed by Southeast Asia Collective Defense Treaty that set up the Southeast Asia Treaty Organization (SEATO). Article IV intended to deter armed aggression with a series of bilateral relationships and a multilateral alliance. Parties agreed to act to meet common dangers in accordance with their constitutional processes. Leaves to each the judgment of what action to take in the event an armed attack occurs. IKE and JFK gave assurances to South Vietnam, by citing SEATO. Glennon (517): Constitutional Diplomacy [Mutual Security Treaties -- the Commitment Myth] The RIO Treaty does not bind the U.S. To take action in event of armed attack. Not qualified by language regarding constitutional processes of each party. No state shall be required to use armed force without its consent--escape clause. At issue is whether a treaty conferring war-making power on the President comports with the Constitution. Power to declare war resides jointly with the House and Senate (Article I, Section 8). Framers decided not to confer upon the Senate the power to declare war. It was believed that the President was slightly less accountable to the public and the Senate could better represent the interests of the people on war. Presidents have argued that a treaty conferred discretionary authority to introduce armed forces into hostilities to enforce that treaty. Platt Amendment in 1904 treaty with Cuba relied on by Theodore Roosevelt to dispatch troops to Cuba in 1906. State relied on SEATO as support for military involvement in Vietnam during 1966. Faithful Execution clause (Article 2, Section 3) may not be used to support presidential introduction of armed forces into hostilities to carry out treaties. Framers intended to limit Presidential enforcement power to laws resulting from legislative action. Are United States mutual security treaties really obligations? See domestic contract law. An illusory promise is an expression cloaked in promissory terms, but which upon examination reveals that the promissor has committed to nothing. Illusion lies in the retained option of non-performance. A contract does not exist unless its terms are reasonably certain. Courts enforce legal obligations not moral ones. Under domestic contract rules, U.S. mutual security treaties would be fatally defective. Members of the Senate repeated in debates on treaty ratification that the U.S. was committing itself to do only what it deemed appropriate. The U.S. retained the option of doing nothing. ...commitment means that under some circumstances, armed forces will be required. Yet the treaties--all of them--in their express terms and equally in the legislative history are clear that under no circumstances is any party required to take military action. ... None of the treaties confers any war-making power on the Presidents that they would not have had in its absence. Deterrence Dilemma: The prime purpose of mutual security pacts is deterrence of aggression. Deterrence is effective only to the extent that it is swift and sure. But speed and certainty are not hallmarks of democratic procedure, especially in the decision to use armed force. The evolution of constitutionalism is in no small part a history of the decline of the war-making power as a prerogative of the executive. Negotiators wrote into mutual security treaties the fullest measure of commitment their domestic system would allow--zero. They rejected swift and sure deterrence in favor of the right to decide--to weigh the facts of the event, to judge whether an armed attack had actually occurred, to determine whether a military response was the most propitious, to consider all the factors relevant to action. Commitment is a Myth! ------------------------------------------------------------------------------------------- Law of Nations as Incorporated into United States Law Franck and Glennon, chapter 2, sections Paquette Habana: international law is a part of our law. But it can be disregarded by treaty, executive order, or judicial decision. See Article 1, Section 8, Clause 10. United States courts have incorporated international law sparingly. Treaties are the supreme law of the land, as declared by the Sixth article of the Constitution. Courts have tended to apply the law of nations in five subject-areas: the protection of human rights, the protection of diplomats, the punishment of piracy and terrorism, the punishment of war-related crimes, and the settlement of claims arising out of the seizure of alien property without adequate compensation. United States v. Crews (1985): any country may apply its body of law to its citizens anywhere in the world. But what about applicability of U.S. law for? The Helms-Burton Act seeks to apply U.S. law to this group of people--non-U.S. citizens in other countries. The United States does not have jurisdiction to enforce its laws, i.e., to take measures directed towards compliance, on another nations sovereign territory, absent consent by the other nation. Chapter 2, Section 2 International Law in Conflict with United States Statute When a treaty conflicts with a statutory law, the last in time doctrine resolves the conflict. Littlejohn v. United States, 1926: when Congress adopts a statute contrary to a treaty, the courts must accept the latest act of Congress. Foreign Relations & Separation of Powers, Checks & Balances Concurrent Power: Little v. Barreme; Youngstown [Steel Case]; Plenary Powers of the President and Congress: Pink; Curtiss Wright; Korematsu I and II. Sources of Constitutional Power: INS v. Chadha Case. Checks & Balances: Passage by two houses (Bicameralism); presentment to the President with option to veto; Congressional right of override. Congressional Measures: Bill, Joint Resolution, Concurrent Resolution, Simple Resolution. Section 1: concurrent Presidential-Congressional power--Little v. Barreme (Page 1), 1804, regarding Flying Fish ship. Because the ship was on a voyage FROM a French port and not TO, it was not liable to capture on the high seas, despite the fact that it was an American-owned ship and that there were hostilities between the United States and France. The ship was thus not subject to the non-intercourse law. Congress authorized seizure of ships sailing to French ports only. The President authorized seizure of ships sailing to or from French ports. The courts sided with Congress. Bottom line: Congress has concurrent powers in foreign affairs. The case illustrates the scope of presidential power in face of Congressional disapproval. Youngstown Sheet & Tube v. Sawyer [steel seizure case] (Page 6). 1952. Was the President acting within his Constitutional power when he seized the steel mills during the Korean War? No. President Truman acted under power as Commander in Chief of the armed forces, and he sought to avoid a catastrophe, by seizing the mills because of a labor-management dispute. Presidential power must stem from the Constitution or from statute. Congress refused to sanction seizure to avert consequences of labor-management disputes. The Constitution does not explicitly authorize presidential action to seize private property. Justice Jacksons concurring opinion Page 10-11 When President acts pursuant to an express or implied authorization of Congress, the Presidents authority is at its maximum. When President acts in absence or either a Congressional grant or denial of authority, the President can only rely on independent powers, but there is a twilight zone of concurrent authority. When President acts against the expressed or implied will of Congress, the Presidents power is at its lowest ebb. As Commander in Chief, it is of the armed forces not of the country. The military powers of Commander in Chief do not supersede representative government of internal affairs. Inherent, implied, incidental, plenary, war, emergency are adjectives that spread confusion. Aside from suspension of the writ of habeas corpus during rebellion or invasion, the Constitution has no provision for the exercise of extraordinary authority in crisis. While Congress cannot deprive the President of the command of the army and navy, only the Congress can provide him an army or navy to command. By seizing the mills, President engaged in a law-making function reserved for the Congress. Law-making power entrusted to Congress in good times and in bad times. Section 2: plenary powers of the President and Congress United states versus pink, 1942: the conduct of foreign relations is committed by the Constitution to the political departments of the federal government. No domestic state can rewrite united states foreign policy to conform to its own domestic policies. United states versus Curtiss-Wright export, 1936 Congress enacted joint resolution authorizing President to ban arms sales if President felt that doing so would further regional peace. At issue is whether the joint resolution is vulnerable to attack under the rule that forbids a delegation of law-making power. Federal government has greater powers in foreign than in domestic affairs. John Marshall: President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. But Congress is prohibited from delegating its legislative power to the President. Bottom line: generalized deference to the President in matters of foreign affairs. Dames & Moore versus Regan: the Iran settlement claims accord upheld via the application of the analytical framework of the steel seizure case not Curtiss-Wright. Ins versus Chadha: invalidated legislative veto--Congress must adhere to Constitutionally-required procedures. Korematsu versus united states, 1944: American citizen of Japanese descent detained during world war ii. Legal restrictions that curtail the civil rights of a single racial group are immediately suspect. all persons of Japanese ancestry... . But court upheld exclusion order. Korematsu detained because the united states was at war with japan not because of racial prejudice. Dissenters in Korematsu: Justice Murphy--forced exclusion is based on an assumption of racial guilt as evidenced y commanding generals final report that said that individuals of Japanese descent belong to an enemy race whose racial strains are undiluted. Justice Jackson: guilt is personal not inheritable. A civil court cannot be made to enforce an order that violates Constitutional limitations even if it is a reasonable exercise of military authority. Korematsu II, 1984: a 1980 act of Congress established a commission on wartime relocation and internment of civilians. Commission tasked with reviewing World II internment. Military necessity failed to justify exclusion and internment. Government had argued in Korematsu I that national security dictated actions against particular classes of persons, and such actions are beyond judicial scrutiny. But court found that it was denied pertinent facts by the government, and held in Korematsu II that could have the errors of fact correct but there was no attempt to correct any legal errors. Hirabayashi versus united states, national security standard of review: court could not second guess the executive and Congress. Rational basis test applied: whether those entrusted with decision-making authority had the facts to make the judgment. National security won out over race. Bottom line: Though Korematsu has limited application as a legal precedent, as history it stands as a caution that it times of war, representative institutions must be vigilant in protecting Constitutional guarantees. Vidal, Lincoln, 1984: Lincoln willing to tradeoff habeas corpus to preserve the union. Section 3: Sources of Constitutional power--issues sometimes fall within gaps of textual provisions. They are interstitial. Which branch of the government has the power to recognize other governments? No provision in the Constitution to determine the answer. INS. Versus Chadha, 1983: Congress reserved for a committee of itself the power to veto the attorney generals determination that a person should not be deported. At issue is the presentment clause and bicameralism. Court held that the legislative veto was unconstitutional. Arms Export Control Act: Congress could disapprove by concurrent resolution Presidential proposed arms sales in excess of $25 million. After Chadha, use of concurrent resolution not possible. In 1986, act amended to preclude arms sales when prohibited by joint resolution. Franck and Glennon, section 2: Presidential war-making power, bas At issue was whether Congress could authorize hostilities falling short of all-out war. Perfect and imperfect war distinction: by granting the Congress the power to declare perfect war, did the Constitution implicitly leave to the President the power of use military force in imperfect wars--when war was not formally declared? Congress may declare a general or limited war. Little v. Barreme: one in a line of cases stemming from an undeclared naval war with France. At issue was a narrow principle of civil liability for damages and detention rather than a broad restriction on independent Presidential authority. Sofaer on war, foreign affairs, Constitutional powers In Little v. Barreme, the court faced whether a seizure pursuant to an executive instruction was invalid because the instruction exceeded the power delegated by Congress. Americans engaged in trading with the France via the flying fish merchant vessel. Captured during war by American naval vessels, returned to owners, but navy not at fault because of probable cause. Declared or perfect war involved a delegation of general authority to commit hostilities against the enemy. Undeclared or imperfect war was limited to those actions authorized by Congress. Brown v. United states: limited restraint on executive power. Cannot use declaration of war to seize enemy property shipped before declaration. Durand v. Holland: in absence of Congressional authorization, the executive has broad discretion in determining when to use military force abroad to respond quickly to threats against American citizens and their property. Bottle thrown at American diplomat in Nicaragua! Secretary of navy ordered ship to bombard the town, inflicting heavy damage. An Americans property was damaged. Durand thus sued Holland the captain. Arthur Schlesinger: not an emergency but a calculated retaliation. True? Executive power under Constitution vested in President--article 2, paragraph 1, Commander in Chief in paragraph 2. Citizen abroad equally entitled to protection as citizen at home. Where a public order rests in executive discretion, neither the President nor authorized agents are personally responsible for the consequences. The prize cases: during civil war, supreme court upheld President Lincolns blockade of southern ports despite the absence of a declaration of war or explicit Congressional authorization. Lincoln without statutory authority ordered a blockade of coastal states that had joined the confederacy. Various actions brought by owners of seized ships. Congress gave retroactive authority for such seizures and the court backed Lincoln. But Senate Foreign Relations Committee report on war power, cites for prize cases that the power to initiate war is one that rests solely with the Congress. The President has no power to initiate or declare a war against a foreign nation or domestic state. Secretary of State Rogers cited Prize case principle that when war is initiated by the other party, the President is not only authorized but also obligated to resist by force and has broad discretion in deciding what measures are demanded by the crisis. Cunningham v. Neagle: the USG has the power to command obedience to its laws. USG is supreme in carrying out its laws. President shall take care to ensure that the laws are faithfully executed. Holtzman v. Schlesinger: the balance of Constitutional authority to declare war is a justiciable not a political issue. Congress in appropriations bills from 1965-1969 had shown its continued support of the Vietnam action. But such bills do not necessarily indicate an open-ended approval of all military operations that may be conducted. Youngstown sheet & tube v. Sawyer: court invalidated Trumans seizure of the steel mills during the Korean war. But at issue was not the Presidents authority. At issue was labor management relations and the fact that Congress had enacted legislation on domestic labor disputes and had withheld power of seizure from the President. An emergency does not create power unless Congress has granted it. Non action by Congress does not constitute an implied grant of power. The principle in the steel seizure case is that the Presidents authority is at its lowest ebb when the President acts in opposition to the Congress. Powers that the President may exercise with the silent acquiescence of Congress are broader than those vested by Constitution. At issue is whether Congress has authorized bombing in Cambodia after the withdrawal of American troops from Vietnam and the release of prisoners of war. The court found in Holtzman that there is no Congressional authority to fight in Cambodia after withdrawal of American forces and release of POWs. Even though the executive may interpret the bombing as an effective means of enforcing paragraph 20 of the Paris agreement of January 27, 1973, Congress has not given its authority for such acts. Franck and Glennon: the war powers resolution, section 3 Note on Chadha: sources of Constitutional power Four kinds of Congressional measures used by Congress: bill, joint resolutions, concurrent resolutions, simple resolution. Bill: passed by both Houses and presented to the President for signature or veto. If enacted, it has force of law. Joint resolution: like a bill--can be used interchangeably with a bill: passed by both Houses and presented to President for signature or veto. Proposals to amend Constitution are generally set forth as joint resolutions. Concurrent resolution: passed by both Houses but not sent to President. Thus, does not have force and effect of law. Used for sense of the Congress statements. Simple resolution: passed by only one House. Lacks force of law. Used to amend standing rules of that House and for sense of the Senate or House declarations. Chadha was a simple resolution. Congress had delegated to a committee of Congress the right to make decisions about who could stay in the U.S. Under the terms of immigration legislation. Congress reserved for itself the right to overrule the President in specific circumstances while leaving the Presidents delegated power unaffected. Because of the concurrent resolution stipulation in the war powers resolution, Chadha would seem to invalidate section 5. A concurrent resolution tries to get around the presentment clause of the Constitution. The separability clause of the war powers resolution permits the other provisions to survive even if the concurrent resolution section is Unconstitutional. War powers resolution--a joint resolution: absent a declaration of war, President may be directed by concurrent resolution to remove united states armed forces engaged in foreign hostilities. Section 5 reserves to the Congress the right to require recall of American troops in fewer than 60 days by concurrent resolution Report of the Senate Foreign Relations Committee on War Powers act [RESOLUTION] Gulf of Tonkin resolution 64 Katzenbach: Resolution gave as broad an authorization for use of armed forces as any declaration of war. LBJ did not even claim Congressional authorization necessary. State: grant of authority in article ii of the Constitution extends to the actions of the USG in Vietnam. National commitments resolution: a commitment to a foreign power only by affirmative action by the executive and legislative branches ignored by executive. Commitment of U.S. Forces to Cambodia in 1970 and to Laos in 1971 without knowledge or consent of Congress. President: advocates of Presidential power: President is unencumbered in the use of armed forces and to make foreign obligations and Congress is brought into the decision-making process only as President finds it useful and convenient. Presidents assume that they have has much power as their predecessors, irrespective of whether properly pursued. Professor Berger: illegality is not legitimated by repetition. Framers wanted to make it more difficult to start a war than to stop a war. So the power to start hostilities vested in Congress than in the President as successor to the British crown. Along same line, power to start war vested in both Houses rather than in Senate alone. President was only to respond to sudden attacks not to start a war without Congress. Alexander Hamilton in federalist 69: President inferior to the crown in powers. The war making power of the President was little more than the power to defend against imminent invasion when Congress not in session. Necessary and proper clause of Constitution in article I, section 8: gives Congress power of carrying into execution all powers vested in the Congress or in any other department. Korea 1950: Congress barely raised a dissent even though Truman failed to obtain Congressional consent. Note on Presidential reports: which of the three reports by President ford triggers the time limit of section 5(b) of the war powers resolution? None! Cambodia: to rescue American nationals, ford committed forces as Commander in Chief. Ford reported under terms of section 4 of the resolution. Vietnam: ditto in Saigon on April 4, 1975. Cambodia: Mayaguez, may 1975: ditto. Mr. John Moore: ex parte Milligan: Congressional authority does not extend to interference with Presidential command decisions. One of the strongest areas of exclusive Presidential authority is in the conduct of hostilities. Examples: Presidential authority would seem to include low level commitments like regional peacekeeping, actions in defense of united states interests in free transit of international straits, humanitarian interventions like the Congo operation, defensive quarantines like the Cuban missile crisis, and commitment of military assistance advisory groups provide that such commitments stop short of the commitment of regular combat units to sustained hostilities. Secretary of State William Rogers: Durand v. Holland: in absence of Congressional authorization, the executive has broad discretion in determining when to use military force abroad to respond quickly to threats against American citizens and their property. State Department Legal Advisor Leigh: besides three situations listed in subsection 2 (c) of the war powers resolution, the President has Constitutional authority to rescue American citizens abroad, to rescue foreign nationals when that would facilitate rescue of Americans abroad, protect American embassies and legations, suppress civil insurrection, implement and administer terms of an armistice or cease-fire designed to terminate hostilities involving the U.S., And to carry out the terms of security commitments contained in treaties. Subsection 2(c): President has Constitutional authority to introduce armed forces into situations where imminent involvement in hostilities is indicated by circumstances pursuant to: 1. A declaration of war, 2. Specific statutory authorization, and 3. A national emergency created by an attack upon the U.S., Its territories or possessions, or its armed forces. Glennons critique of Sofaer: Congress does have the right to place limits on the use of Presidential force. There is no implied statutory approval for the President to use force. Franck: Congress seems to have conceded to the President the power to start short wars and reserved to itself the power to terminate long wars. At issue for Congress is duration rather than occurrence. Art Buchwald: Sidney cannot leave Dominican republican because to do so there would not be a basis for the American intervention! Glennon: war powers resolutions sad record and dismal promise. Lawrence Tribe: it is the delegation to Congress of a continuing role in implementation of extant laws that Chadha forbids. Richard Nixons veto of war powers resolution, October 73 Unconstitutional: 60 day duration inconsistent with power of President as Commander in Chief; concurrent resolution under which Congress could force withdrawal does not have force of law. Dangerous: miscalculation from not knowing whether Congress may force withdrawal. Coercive diplomacy out: hard to marry force with diplomacy: quiet diplomacy backed by subtle shifts in military power Inconsistent with obligations under NATO. Treaties and other international agreements Suppose that the President signs an executive order agreeing to protect Israel against attack by responding to such attack as if it were an assault against the U.S.? Could a subsequent President treat such a commitment as void because Israel should have known that the President could only make such a commitment by complying with article ii, section 2 of the Constitution? The power of the purse Boland amendment No funds available to the CIA, DoD, or any other agency involved in intelligence activities may be obligated for the purpose of supporting military operations in Nicaragua. National Security Council staff Under the terms of the Boland amendment is the NSC staff is an entity prohibited from aiding the contras? The national security act of 1947 established a central intelligence agency under the council. How did Charles I lose both his office and his head? Controlling tin cup diplomacy Congress may bar quid pro quo arrangements but not solicitations from third countries to other countries. Article I, section 9: no money shall be drawn from the treasury, but in consequence of appropriations made by law. Madison in Federalist 48: the legislative department alone has access to the pockets of the people. Fisher: Presidential spending power reprogramming moving funds from one program to another. Glennon: purse string restrictions to strengthen the war powers resolution. A funding cutoff is a product of an exclusive Congressional power is more forceful Constitutionally than the simple termination provisions of sections 5(b) and 5(c) of the war powers resolution. And there is precedent for a cutoff by concurrent resolution. Franck: regarding war powers resolution, suggests prior restraint funding cutoff rather than the termination clauses. Vance: funding cutoff. Glennon: distinction between whether President acts within Constitutional authority and whether Congress can prohibit funds for those purposes. President can carry out only those military operations within Constitutional authority for which Congress has appropriated funds. The power of the President to commit armed forces to hostilities is subordinate to the power of the Congress to deny funds. While the President was in violation of statutory law in the Vietnam evacuation and Mayaguez incident, the Constitutionality of those actions is an independent matter. Mccloskey to Clark: statutes prohibiting the use of funds not intended to apply to Presidents use of armed forces to evacuate American and Vietnamese nationals from danger. Power of the Congressional purse limited by the Presidents Constitutional responsibilities, e.g., For the protection of united states nationals abroad and safety of united states forces under attack. Presidential ability to declare war Walter Dellinger, legal counsel, justice department, New York times, 30 September 1994, b10. Haiti: legal authority for invasion--three factors provide legal authority for President to order an invasion of Haiti: 1) Congress expected an invasion and indirectly approved one when it enacted the 1994 defense appropriations act; 2) invasion would not violate the war powers resolution; an invasion would not have been a war because the united states would have been invited in by the legitimate government. Defense appropriations act: section 8147 expresses sense of Congress that President would not require express prior statutory authority for deploying troops into Haiti provided that he made certain findings and reported them to the Congress. Power of the purse? funds appropriated by this act should not be obligated or expended for united states military operations in Haiti. ... . the funding limitation should not apply if the intended deployment: 1) is justified by united states national security interests; 2) will be undertaken only after necessary steps have been taken to ensure the safety and security of united states armed forces, including steps to ensure that they would not become targets due to the nature of their rules of engagement; 3) will be undertaken only after an assessment that: a) the mission and objectives are most appropriate for the united states armed forces rather than civilian personnel or armed forces from other nations, and B) the United States forces proposed for deployment are necessary and sufficient to accomplish the objectives of the proposed mission. 4) will be undertaken only after clear objectives for the deployment are established; 5) will be undertaken only after an exit strategy for ending the operation has been identified; and 6) will be undertaken only after financial costs of the deployment are estimated. Question: Do the above limitations imply Congressional consent for invasion? That is, once the President makes the above findings and reported them to the Congress in advance of deployment, is there sufficient legal authority for the deployment? Question: does the War Powers Resolution presuppose the existence of unilateral Presidential authority to deploy forces into hostilities or into situations where imminent involvement in hostilities is indicated by circumstances. Question: does the declaration of war clause require Congressional authorization for the deployment of troops at issue for Haiti? No, because the operation was not a war in the meaning of the clause because it took place with the full consent of the legitimate government of Haiti. Professor Raymond Tanter The University of Michigan http://www-personal.umich.edu/~rtanter Political Science Department Phone: (313)763-2221 (o); (313)764-3522 (f) Ann Arbor, MI 48109-1045 Residence voicemail & FAX: (313)769-1988