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Presidential Authority in the War on Terrorism: Iraq and Beyond
Published on October 2, 2002 by Jack Spencer BACKGROUNDER #1600
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The President of the United States has no greater responsibility than protecting the American people from threats, both foreign and domestic. He is vested by the Constitution with the authority and responsibility to accomplish this essential task. In taking his oath of office, the President swears to "preserve, protect, and defend the Constitution of the United States," the Preamble of which makes providing for the "common defense" a top priority. Congress must now make its voice heard on a key issue of national security and bring to a vote support for President George W. Bush's strategy for pursuing the war on terrorism in the way that he, as commander in chief, deems necessary.
As the nature of the threats to the United States changes, so must the nation's approach to its defense. To fulfill his constitutional responsibility, the President must have the flexibility to address these threats as they emerge; and, given the proliferation of weapons of mass destruction by nations hostile to America, in an increasing number of cases, this may require applying military power before the United States or its interests are struck. In situations where the evidence demonstrates overwhelmingly that behavioral trends, capability, and motives all point to imminent threat, it may be necessary for the President to attack preemptively.
While there has been little argument over the use of armed force in Afghanistan to retaliate against an act of aggression, preemptive action is also clearly justifiable because the following principles apply:
PRINCIPLE #1: The right to self-defense is codified in customary international law and in the charter of the United Nations. The most basic expression of a nation's sovereignty is action taken in self-defense. Traditional international law recognizes that right,1 and the United Nations Charter is wholly consistent with it. Article 51 of the U.N. Charter states: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations."
PRINCIPLE #2: The right of "anticipatory self-defense" allows for preemptive strikes. 2 The right to self-defense incorporates the principle of anticipatory self-defense, which is particularly salient in the war on terrorism. The reality of international life in the 21st century is that nations or organizations that wish to challenge America or Western powers increasingly are seeking weapons of mass destruction to achieve their political objectives. The only effective response may be to destroy those capabilities before they are used. The tenet of traditional, customary international law that allows for this preventive or preemptive action is "anticipatory self-defense."
An oft-cited incident that validates the practice of anticipatory self-defense as part of international law occurred in 1837. That year, British forces crossed into American territory to destroy a Canadian ship, anticipating that the ship would be used to support an anti-British insurrection. The British government claimed its actions were necessary for self-defense, and the United States accepted that explanation.3
While there is debate as to whether or not this principle of international law survived the adoption of the U.N. Charter, the fact is that neither the charter nor the actions of member states since the charter came into force outlaw the principle.4 Israel has invoked the right of anticipatory self-defense numerous times throughout its history, including incidents in 1956 when it preemptively struck Egypt and in 1967 when it struck Syria, Jordan, and Egypt as those nations were preparing an attack.
The United States has also asserted its right to anticipatory self-defense. A classic example occurred in 1962 when President John Kennedy ordered a blockade of Cuba--a clear act of aggression--during the Cuban missile crisis. Although no shots had been fired, President Kennedy's preemptive action was imperative for the protection of American security. During the 1980s, President Ronald Reagan invoked this right at least twice: first, in 1983, when he ordered an invasion of Grenada to protect U.S. nationals from potential harm, and again in 1986, when he ordered the bombing of terrorist sites in Libya.
When any nation that is overtly hostile to America or its allies is developing weapons of mass destruction, has ties to international terrorist, and intelligence data give reason to believe that there is an intent to attack, the threshold of the United States' right to invoke a response based on anticipatory self-defense has clearly been passed.
PRINCIPLE #3: The United States government alone has the authority to determine what constitutes a threat to its citizens and what should be done about it. Under the U.S. Constitution, the authority to determine when it is appropriate for the United States to invoke and exercise its right to use military force in its own defense is vested in the President, as commander in chief of the armed forces, and Congress, which has authority to raise and support armies and to declare war. No treaty, including the U.N. Charter, can redistribute this authority or give an international organization veto power over U.S. actions that would otherwise be lawful and fully in accord with the Constitution.5
PRINCIPLE # 4: The President as commander in chief has the authority to use America's armed forces to "provide for the common defense." The Constitution gives Congress the authority to declare war but makes the President commander in chief. Since the birth of the nation, this division of power has given rise to tension between the executive and legislative branches of government regarding who can authorize the use of force.6
Debate regarding this matter gave rise to the War Powers Resolution,7 which states that the President can use force to protect the nation without congressional authorization for 60 to 90 days. Many, including every President since this resolution came into force in 1973, have regarded the document as unconstitutional. Most, however, agree that the President has the authority to defend America from attack, even in the absence of congressional authorization.8 It should be noted that if Congress is truly opposed to any military action authorized by the President, it has the power to defund that mission, making it impossible to carry out.
