Nuclear Age Peace Foundation

Author: Bruce Ackerman

  • Presidential Lawlessness

    This article is part of a series from the November 2017 Harvard University conference entitled “Presidential First Use: Is it legal? Is it constitutional? Is it just?” To access all of the transcripts from this conference, click here.

    We need to construct a credible legal institution within the executive branch to constrain the president’s unilateral war-making powers and insist that he gain the consent of Congress before making any use of nuclear weapons. This is required both by the Constitution and by the War Powers Act of 1973. Up through the 1970s, the Office of Legal Counsel (OLC), in the Justice Department, served this crucial function as legal guardian. Its elite staff of 30 civil service lawyers were charged with writing opinions on contested issues of law within the executive branch. A special statute specifically made these opinions binding on the military. This law remains on the books, but the OLC no longer credibly operates as the executive branch’s legal conscience.

    Until the Nixon Administration, the OLC generally had only one political appointee, the assistant attorney general, who was in charge of the office. The hard work of opinion writing was executed by those 30 civil service lawyers, who had a deep understanding of the legal traditions established by generations of executive branch practice. Nowadays, career lawyers are very much in the minority, and high-powered political appointees often take the lead in opinion writing. While executive branch traditions continue to play a role, many OLC opinions now look more like advocate’s briefs for the sitting president than balanced assessments of applicable statutes and doctrines.

    Worse yet, even these partisan opinions no longer play the authoritative role once accorded to the OLC. Instead, the Office of White House Counsel now calls the shots on issues high on the president’s agenda. This rival team of high-powered lawyers did not even exist until 1969, when John Dean was appointed counsel to the president. Before that moment, the White House counsel was a position reserved for one of the president’s trusted political advisors. The counsel’s legal tasks were so minimal that he did not need a legal staff to help him out.

    Dean was only 31 years old when he took up the position of White House counsel. Since he was far too young to assume the counsel’s traditional function as senior advisor, he hired four staff lawyers to take the legal side of the job seriously. This experiment had an inauspicious beginning, since Dean and his staff played a critical role in the Watergate cover-up. But over the next decades, the White House counsel’s office escaped from its scandalous beginnings, and is now slightly larger than the OLC. Moreover, its 35 or 40 positions are swept clean with every administration, in favor of a whole new set of high-powered lawyers, whose principal qualification is their long-standing support of the sitting president and his policies.

    Given the constant turnover, the White House counsel’s office has no institutional memory, and many of the appointees don’t have much personal experience with any number of crucial areas that raise fundamental legal issues. For example, Robert Bauer was the White House counsel at the time of the war against Libya. He had been a lawyer for the Democratic National Committee and a personal lawyer to President Obama. He knew very little about national security law. Yet he intervened decisively on the question of whether the president was required to gain Congressional approval for his bombing campaign against Libya in 2011.

    Obama refused to do so, fearing that Congress would say no. But the War Powers Act of 1973 was designed with precisely such a case in mind. It provides that if the president fails to gain Congressional authorization within 60 days of initiating hostilities, he must cease all military operations within the next 30 days. As the 90th day approached, the Office of Legal Counsel began preparing an opinion that took the statute seriously and advised the president that he should stop bombing.

    In response, Bauer told the OLC to stop work on its opinion, and began to search the executive branch for another legal office that would write a legal-looking opinion that came out with the opposite answer. His quest led him Harold Koh, the State Department’s legal adviser, who obliged with a highly creative “interpretation” of the statute that allowed the president to keep on bombing past the 60–30 day deadline.

    The “Bauer-Koh” moment marked the total disintegration of the OLC’s function as legal guardian. From then on, the OLC was on notice that if it did not give the president what he wanted, his White House counsel would suppress publication of their opinions and find a different executive branch lawyer to back the president up.

    The rule of law suffered yet another body blow, in 2014, when President Obama embarked on a sustained campaign against the Islamic State, on September 10. This time around, the administration issued no opinion at all within the 60–30 day period that even purported to justify its escalating war against ISIS. It merely asserted that the Congressional authorizations for the use of force against Al Qaeda in 2001 and Saddam Hussein in 2002 should be expansively interpreted to authorize Obama’s war against ISIS in 2014.

    I represent Captain Nathan Smith, who has served as an intelligence officer in the command headquarters in the ISIS war, in a lawsuit. That suit charges that Obama’s bare assertions of authority, recently reasserted by the Trump Administration, cannot survive serious legal scrutiny, and that the ongoing military campaign against ISIS is illegal under the War Powers Act. Smith vs. Trump is presently under consideration by the Court of Appeals for the DC Circuit, and may well go to the Supreme Court for final resolution. A victory in this case would be a large step forward in vindicating Congress’s constitutional authority as the ultimate arbiter on the question of war and peace.

    Nevertheless, even a favorable Supreme Court decision won’t be enough to stop Trump or future presidents from waging unilateral wars during the long years that future Captain Smiths will need to convince future justices to intervene decisively in the name of the rule of law. America needs a powerful legal guardian within the executive branch to take the plain language of the War Powers Act seriously, and tell the president, in published opinions, that he must stop his unilateral military campaigns at the 90-day limit, or else breach his constitutional obligation to “take care that the laws be faithfully executed.” Such a pronouncement could well trigger the inauguration of impeachment proceedings, and only a particularly foolhardy or self-righteous president would choose to treat the guardian’s words with impunity.

  • Bush Can’t Operate as a One-Man Band

    Within one short month, President Bush has launched two major assaults on our system of checks and balances. Without gaining statutory approval from Congress, he announced his plan to punish terrorists with military commissions. And now he claims the right to act unilaterally once again terminating the Antiballistic Missile Treaty without gaining legislative approval.

    In both cases, Bush is on weak constitutional ground. Basic principles require the president to gain the consent of Congress on matters of high importance.

    When President Roosevelt created military tribunals during World War II, he did so under express statutory authorization and after an express declaration of war. But Bush proposes to proceed solely in his capacity as commander in chief and without a formal declaration of war. While the U.S. Supreme Court upheld Roosevelt’s action, its decision cannot be readily stretched to support the constitutionality of Bush’s bare assertion of power.

    The same is true with the ABM treaty. The leading case involves President Carter’s unilateral termination of a defense treaty with Taiwan. In response, Sen. Barry Goldwater (RAriz.) convinced many of his colleagues to join him in a lawsuit before the Supreme Court.

    Senior Republicans such as Sens. Orrin Hatch, Jesse Helms and Strom Thurmond signed Goldwater’s brief protesting “a dangerous precedent for executive usurpation of Congress’ historically and constitutionally based powers.”

    But in his plurality opinion, Justice William Rehnquist called the case a “political question” and left the matter for resolution “by the Executive and Legislative branches.” This is hardly an endorsement of presidential unilateralism.

    Seven new justices have joined the high court since Goldwater’s challenge, and there is no predicting the outcome of a new case. Even more has happened since the dark days of World War II when the court upheld FDR’s military commissions. As a new round of judicial challenges come to court, the justices will begin to see a troubling pattern, and perhaps they will have the courage to call a halt.

    This happened once before, when President Truman asserted a unilateral power, as commander in chief, to seize private steel mills during the Korean War. The court declared this unilateral action unconstitutional. Perhaps it may find the courage to do so again.

    But rather than waiting for the court to save us by a vote of 5 to 4, we should be asking fundamental questions now.

    The Bush administration would like to treat each new unilateral adventure as an isolated problem; defending its military commissions by invoking the president’s power as commander in chief; treaty termination by expanding his power “to conduct foreign affairs” (despite the fact that no such power is explicitly delegated to him by the Constitution).

    But there is a larger question involved: Why is Bush persistently pushing the constitutional envelope? We are only in the first year of his presidency. If this tendency is allowed to go unchecked, many more constitutional surprises may be in store for us.

    There is nothing inevitable about the administration’s present course. Atty. Gen. John Ashcroft has begun to retreat after Senate hearings. He has chosen to prosecute the suspected “20th terrorist” before an ordinary federal court.

    Similarly, the Senate should call the secretary of State for hearings on the ABM treaty. The issue is not merely the future of a missile system. If Bush can terminate our treaty with the Russians, we may wake up one morning to hear some future president canceling our treaty commitments to North Atlantic Treaty Organization or Israel or the United Nations.

    Senate hearings will not only serve to emphasize these broader questions. They will help create a climate of public opinion uncongenial to more presidential unilateralism.

    The only effective cure is to enlarge the debate and convince the administration that the public does indeed take the Constitution seriously.
    *Bruce Ackerman is a professor of constitutional law at Yale.

  • Treaties Don’t Belong to Presidents

    New Haven– President Bush has told the Russians that he will withdraw from the Antiballistic Missile Treaty, which gives both countries the right to terminate on six months’ notice. But does the president have the constitutional authority to exercise this power without first obtaining Congressional consent?

    Presidents don’t have the power to enter into treaties unilaterally. This requires the consent of two-thirds of the Senate, and once a treaty enters into force, the Constitution makes it part of the “supreme law of the land” just like a statute.

    Presidents can’t terminate statutes they don’t like. They must persuade both houses of Congress to join in a repeal. Should the termination of treaties operate any differently?

    The question first came up in 1798. As war intensified in Europe, America found itself in an entangling alliance with the French under treaties made during our own revolution. But President John Adams did not terminate these treaties unilaterally. He signed an act of Congress to “Declare the Treaties Heretofore Concluded with France No Longer Obligatory on the United States.”

    The next case was in 1846. As the country struggled to define its northern boundary with Canada, President James Polk specifically asked Congress for authority to withdraw from the Oregon Territory Treaty with Great Britain, and Congress obliged with a joint resolution. Cooperation of the legislative and executive branches remained the norm, despite some exceptions, during the next 125 years.

    The big change occurred in 1978, when Jimmy Carter unilaterally terminated our mutual defense treaty with Taiwan. Senator Barry Goldwater responded with a lawsuit, asking the Supreme Court to maintain the traditional system of checks and balances. The court declined to make a decision on the merits of the case. In an opinion by Justice William Rehnquist, four justices called the issue a political question inappropriate for judicial resolution. Two others refused to go this far but joined the majority for other reasons. So by a vote of 6 to 3, the court dismissed the case.

    Seven new justices have since joined the court, and there is no predicting how a new case would turn out. Only one thing is clear. In dismissing Senator Goldwater’s complaint, the court did not endorse the doctrine of presidential unilateralism. Justice Rehnquist expressly left the matter for resolution “by the executive and legislative branches.” The ball is now in Congress’s court. How should it respond?

    First and foremost, by recognizing the seriousness of this matter. If President Bush is allowed to terminate the ABM treaty, what is to stop future presidents from unilaterally taking America out of NATO or the United Nations?

    The question is not whether such steps are wise, but how democratically they should be taken. America does not enter into treaties lightly. They are solemn commitments made after wide-ranging democratic debate. Unilateral action by the president does not measure up to this standard.

    Unilateralism might have seemed more plausible during the cold war. The popular imagination was full of apocalyptic scenarios under which the nation’s fate hinged on emergency action by the president alone. These decisions did not typically involve the termination of treaties. But with the president’s finger poised on the nuclear button, it might have seemed unrealistic for constitutional scholars to insist on a fundamental difference between the executive power to implement our foreign policy commitments and the power to terminate them.

    The world now looks very different. America’s adversaries may inveigh against its hegemony, but for America’s friends, the crucial question is how this country will exercise its dominance. Will its power be wielded by a single man ˜ unchecked by the nation’s international obligations or the control of Congress? Or will that power be exercised under the democratic rule of law?

    Barry Goldwater’s warning is even more relevant today than 20 years ago. The question is whether Republicans will heed his warning against “a dangerous precedent for executive usurpation of Congress’s historically and constitutionally based powers.” Several leading senators signed this statement that appeared in Senator Goldwater’s brief ˜ including Orrin Hatch, JesseHelms and Strom Thurmond, who are still serving. They should defend Congress’s power today, as they did in the Carter era.

    If they join with Democrats in raising the constitutional issue, they will help establish a precedent that will endure long after the ABM treaty is forgotten. Congress should proceed with a joint resolution declaring that Mr. Bush cannot terminate treaty obligations on his own. And if the president proceeds unilaterally, Congress should take further steps to defend its role in foreign policy.

    We need not suppose that the president will respond by embarking on a collision course with Congress. His father, for example, took a different approach to constitutionally sensitive issues. When members of Congress went to court to challenge the constitutionality of the Persian Gulf war, President George H. W. Bush did not proceed unilaterally. To his great credit, he requested and received support from both houses of Congress before making war against Saddam Hussein. This decision stands as one precedent for the democratic control of foreign policy in the post-cold war era. We are now in the process of creating another.

    *Bruce Ackerman is Professor of Constitutional Law at Yale Law School and co-author of “Is Nafta Constitutional?”