The “Sole Organ” Doctrine
As a sovereign nation the United States is suppose to speak with one voice in foreign affairs. The Office of the Presidency is the most suitable of the three branches of the government to represent the nation in that respect. The President, therefore, is the “sole organ,” hence, in foreign affairs he is the equivalent of a monarch. He has broad authority to determine when and how to act in foreign affairs.[11] At his discretion, the President can use the military to execute American foreign policy and protect the national interest of the United States abroad. The President can call on the military to take certain actions abroad that he deems is in the national security interest of the United States. As the “sole organ” in foreign affairs, the President represents the United States internationally, including negotiating military agreements and participating in matters that require the use of the military. The President’s “sole organ” authority allows him to call up the military in certain national and international emergencies without Congressional authorization. As the chief architect of American foreign policy the President has the authority to use the military as he sees fit to carry out the foreign policy of the nation.
The “sole organ” doctrine was first affirmed by Justice Sutherland in the case United States v. Curtiss-Wright Export Corporation. Curtiss-Wright Export Corporation initially challenged the legitimacy of a Congressional delegation of power to the President to impose an arms embargo on Bolivia and Paraguay during the Chaco war between the two countries. The embargo prohibited American arms manufacturers from selling weapons to either party. Curtiss-Wright Export Corporation was charged with conspiracy to violate the embargo by secretly trying to sell arms and bombers to Bolivia. Writing for the majority, Justice Sutherland opined: “As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America....”
“The Union existed before the Constitution, which was ordained and established among other things to form ‘a more perfect Union.’ Prior to that event, it is clear that the Union, declared by the Articles of Confederation to be ‘perpetual,’ was the sole possessor of external sovereignty and in the Union it remained without change save in so far as the Constitution in express terms qualified its exercise...” “It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as a necessary concomitants of nationality....As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of other members of the international family.”[12]
Justice Sutherland went on to say that in foreign affairs the United States speaks with one voice, and that voice is the President of the United States of America. He further claimed that as a sovereign nation, the United States inherited certain powers that are inherent in its Declaration of Independence.[13] These rights, he said, existed before the Constitution was adopted and that the United States would have those right whether or not the Constitution was ever ratified. The Constitution, he believed, simply reaffirmed existing rights guaranteed to the United States as a sovereign nation.
Executive Authority
Another source of Presidential authority in matters of war and peace is his “Executive Authority.” Article 2, section 1 of the Constitution states that “executive authority shall be vested in the President of the United States.” The Constitution does not give a precise definition of “executive authority.” Given the vagueness of the term, the President can conclude that he has inherent or implied powers to deploy the military abroad without Congressional authorization. It is the President who must determine the extent of his executive authority and when to use it to his advantage. Executive authority can be broadly interpreted to mean any Presidential action not explicitly prohibited by the Constitution.[14] The President can therefore rely on such vaguely defined authority to justify deploying the military abroad in the absence of a more credible justification.
Presidential Oath of Office
Before taking office, the President takes an oath in which he solemnly swear that he will faithfully execute the Office of President of the United States, and will to the best of his ability, preserve, protect and defend the Constitution of the United States. The “Oath of Office” allows the President one more excuse to justify a military deployment and to claim that he is executing his office by defending the Constitution of the United States. Although the clause does not specifically prescribe that the President can use force to execute his office or defend the Constitution, it does not prohibit him from using force either.[15] The President, therefore, can legally resort to force under the oath of office clause without Congressional authorization in matters of national emergencies, an attack on the United States, or an attempt to break up the Union.
The Right of the United States to Self Defense
Under the Treaty of Westphalia and customary international law states have an inherent right to self defense (self preservation). Under customary international law states exercised unlimited right of self defense, including protecting their nationals in other states. In 1899 and 1907 the Hague Conventions tried to limit the conduct of states in war, but failed to outright ban wars. In 1945 the United Nations attempted to curtail the discretionary right of states to go to war by banning the threat or use of force in international relations and granting states a right to self defense only if an armed attack occurs and up until the Security Council has taken the necessary measures to maintain international peace and security. The Charter provides for the legitimate use of force only in self defense and in collective enforcement measures authorized by Security Council under Chapter VII.[16]
The President of the United States, as the sole organ in foreign affairs, acquired that right to determine when to use force in the self defense of the United States. However, the action of the President, and the United States in general, is restricted by the United Nations Charter regime governing the use of force. The President of the United States is entitled to use force in self defense only if an armed attack occurs.[17] In the specific case of a terrorist attack, it is questionable whether the right to self defense under United Nations Charter law is permissible, and if so, the scope of its application.
In the past the President of the United States has used force to justify retaliating against previous terrorist attacks on American citizens and American interest abroad. However, none of these instances were endorsed by the Security Council or General Assembly. Assuming there is an actual armed attack against the United States by another state, the President has the legitimate authority under international law to invoke the right of self defense without Congressional authorization. The President, acting on behalf of the United States, has an inherent right to self defense under international law and can exercise such a right with or without Congressional authorization. The right to self defense exists independent of the U.S. Constitution and the President can rely on such a right to justify his decision to deploy the military abroad.
Protecting U.S. National Security Interest
The President of the United States can deploy the military abroad to protect the national security interest of the nation, to repel an armed attack against the United States, or to protect American interest abroad.[18] The President is best equipped to determine when the national security interest of the United States is threatened. With the vast array of intelligence services at his disposal and direct communication with U.S. embassies abroad, the President is privy to information about possible threats to the security of the nation that the other branches lack. This allows the President to respond appropriately and expeditiously without Congress so as to maintain the secrecy of the operation and to avoid compromising U.S. intelligence gathering. The President can invoke the threat to national security to justify his use of the military without specifically identifying the nature of the threat or the source of his information. Whether the threat to national security is credible or not is a decision to be made only by the President.
The President has invoked his national security powers to engage in numerous activities, including attempted overthrows of foreign governments, support for guerrilla movements and attempted assassinations of head of states. Since the end of the Cold War, the threat to national security has expanded to include non-conventional threats such as drug trafficking, terrorism and other transnational criminal activities. The use of the military to foil terrorist attacks or to intercept drug trafficking are considered legitimate use of the military by the President which does not require Congressional authorization.
Protecting American Nationals at Home and Abroad
The President of the United States has a Constitutional obligation to protect American citizens both at home and abroad.[19] In the past Presidents have used force to rescue U.S. citizens abroad without Congressional authorization. In the Dominican Republic, Grenada and Panama, Presidents Johnson, Reagan and Bush, respectively, resorted to military force in part to protect American citizens.[20] Congress was not consulted prior to these attacks, but was briefed after the operations had begun. Congress later acquiesced to wars that were already in progress. In many of these so-called rescue missions, Congress is placed in a precarious position. It risk jeopardizing the safety of the troops if it opposes the operation after the fact. Disagreement between Congress and the President could also send the wrong message to our adversaries that the Government of the United States is divided on the action taken by the President. The President is well aware of this delicate balance and uses it to his political advantage.
The Treaty Obligations of the United States
United States treaty obligation is another sources of power the President can invoke to justify deploying the military abroad without Congressional authorization. The United States has ratified a number of bilateral and multilateral collective defense agreements that provide for mutual assistance in the event of an armed attack on one of the parties. The United States is legally bound by its treaty obligations to come to the assistance of a member of these defense alliances.[21] The decision to intervene as part of a collective defense arrangement would rest solely with the President of the United States. Such treaty agreements currently exist between the United States and NATO, the United States and the United Nations, the United States and the OAS, and the United States and SEATO. The United States also has bilateral military agreements with Japan, South Korea, Taiwan and several Gulf states. Given that the Senate participates in the ratification of any treaty that becomes law in the United States, one chamber of Congress is giving the President prior authorization to participate in a military operation under these treaty regimes.
In 1950 President Truman relied on the United Nations Charter to intervene militarily against North Korea. In 1965 President Johnson extended U.S. military invasion of the Dominican Republic on the basis of U.S. obligation under the OAS treaty. In 1983 President Reagan invoked Article 8 of the treaty of the Organization of East Caribbean States (OECS) to justify U.S. invasion of Grenada. In 1989 President Bush invoked the 1978 Panama Canal Treaty to justify his invasion of Panama. President Bush (Father) relied heavily on Security Council Resolution 678 (1990) adopted under Chapter VII of the Charter of the United Nations to make a case for ejecting Iraqi forces from Kuwait.[22] Bush also deploy troops in Somalia in 1992 on the basis of Security Council Resolution 794 (1992). Similarly, President Clinton relied on Security Council Resolution 940 (1994) to deploy American troops in Haiti in 1994. The United States participated in the NATO-led military strikes against Yugoslavia in 1999 under the rubric of its NATO treaty obligation. Similarly, the United States participation in the peacekeeping mission in Bosnia (SFOR) is also undertaken under its NATO treaty obligation. President Clinton strongly defended U.S. involvement in both operations on the need to comply with our treaty commitments. President Bush, who had called for an early withdrawal of U.S. troops from the Balkans during the presidential campaign, now says he will keep them there as long as NATO stays.
Presidential War Power in the Early Years of the Republic
During the early years of the Republic the President generally adhered to the principle that war power was vested in the Congress of the United States. John Adams requested and received Congressional authorizing in 1798 before dispatching U.S. naval vessels to attack French vessels that were preying on U.S. commercial shipping. Similarly, Jefferson and Madison believed that Presidents should carefully respect the war powers of Congress.
In 1801 President Jefferson was confronted with the problem of American vessels in the Mediterranean being attacked by pirates from Tripoli and other Barbary Coast states of Algeria, Morocco and Tunisia. Jefferson dispatched a squadron to the Mediterranean with specific instructions to pay the pirates to stop attacking American vessels and if they refuse to take military action to prevent further attacks on American commercial vessels if the attacks continue. However, when Jefferson addressed Congress he did not mention the instructions he gave to the commodore of the squadron. Congress passed legislation in 1802 to authorize the naval war that eventually led to the treaty with the Barbary powers.[23] Except for this one incident, Jefferson adhered to the principle of Congressional prerogative in matters of war.
The War of 1812 was the first time in the history of the Republic that Congress actually declared war. The war was a result of British attacks on U.S. commercial vessels, its supply of arms to hostile Indians on the frontier, and its desire to acquire foreign territory in Canada and Florida. Members of Congress from the South and the West advocated war with Britain and persuaded President Madison to act. Madison strongly believed in Congress’s authority to declare war, and on June 1, 1812 he requested a declaration of war from Congress. Governors of several Northeast states refused to authorize the use of their troops. The British inflicted severe military defeats on the U.S., including the burning down of Washington, DC in 1814. However, on the eve of the end of the war, General Andrew Jackson launched a successful offensive against British forces and restored some faith in the U.S. military. The war ended with the signing of the Treaty of Ghent in 1814.
The annexation of Texas and the Mexican War was the next occasion for the President to request a declaration of war from Congress. Texas declared its independence from Mexico in 1836 and offered to become a part of the United States. Both Presidents Jackson and Van Buren had avoided action on Texas due to controversy over the expansion of slavery in the South. They feared that if they push for the annexation of Texas, Northern states would oppose it. Tyler, who succeeded Harrison as President in 1841, was pro-slavery. He initiated a public relations campaign to annex Texas. Texas needed guarantees that if it joined the union it would be protected from Mexico. After the Senate rejected the annexation treaty, Tyler asked Congress for a joint resolution to validate the executive agreement between Texas and the United States.
In 1846 President Polk ordered General Zachary Taylor to deploy his army in a strip of disputed territory near the Rio Grande, claimed by Texas but occupied by Mexico. After Mexican troops attacked and killed a number of American troops, Polk requested a declaration of war from Congress. On May 13, 1846, Congress recognized “a state of war as existing by act of the Republic of Mexico.”
A shift in Presidential war power came with the Civil War 1861. President Lincoln assumed extraordinary powers during the war in order to preserve the Union. For Lincoln, preserving the unity of the nation took precedent over a strict interpretation of the Constitution. Although the war began on April 12, 1861, Lincoln did not seek emergence measures from Congress until July 4th. In the interim he ordered a series of drastic executive measures to meet the military emergency. Lincoln mobilized 75,000 state militia, and unilaterally increased the size of the regular army by 23,000 troops and the navy by 18,000. Lincoln further added 19 vessels to the navy and ordered the Secretary of the Treasury to advance $2 million to authorized persons to pay for military acquisition. Lincoln also ordered a blockade of the Southern ports, suspended the writ of habeas corpus in the vicinity of routes used by Union forces between Washington, D.C., and Philadelphia, and restricted the rights of foreigners and those suspected of participating in “treasonable practices.” A joint resolution of Congress to sanction Lincoln’s acts was defeated due to concerns about his suspension of habeas corpus and the blockade of Southern ports. However, on August 6, 1861, Congress passed a bill which declared the President’s acts pertaining to the militia, the army, the navy, and the volunteers “in all respects legalized and made valid, to the same intent and with the same effect as if they had been issued and done under the previous express authority and direction of Congress.”
For the duration of the war, Lincoln expanded his commander in chief powers beyond the limits of the constitution. He invoked his commander in chief power to issue the Emancipation Proclamation and justified it on the ground that the liberation of the slaves reduced the labor force of the South, thus hindering its ability to continue the war. Lincoln ordered a military draft and extended the suspension of the writ of habeas corpus to persons throughout the nation who were “guilty of any disloyal practice.” The Civil War would mark a turning point in Presidential war powers.
The Spanish American War of 1898 was yet another opportunity for the President to invoke his commander in chief powers. Members of Congress were eager for the United States to go to war with Spain to free Cuba from Spanish control. A Congressional delegation met with President Cleveland and told him “We have about decided to declare war against Spain over the Cuban question.” President Cleveland quickly responded: “There will be no war with Spain over Cuba while I am President.”
McKinley, who succeeded Cleveland as President in 1897, resisted attempts to get him involve in a war with Spain. However, after the sinking of the U.S. battleship, Maine in Havana harbor in February 1898, McKinley asked Congress to approve American military intervention in Cuba. On April 25, Congress passed a declaration of war, authorizing the President to use military force to expel Spain from the island. Spanish forces were no match for the superior American military. The United States quickly defeated Spain, and on December 10, 1898, Spain signed a treaty by which it relinquished control over Cuba and ceded the Philippines, Puerto Rico and Guam to the United States.
clr.prf.cuni.cz |
