Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005

Prakash, Saikrishna

English

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 81 | Issue 4 Article 8Fall 2006Regulating the Commander in Chief: SomeTheoriesSaikrishna PrakashUniversity of San Diego School of LawFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Constitutional Law Commons, Law and Politics Commons, Legislation Commons,and the Military, War, and Peace CommonsThis Symposium is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationPrakash, Saikrishna (2006) "Regulating the Commander in Chief: Some Theories," Indiana Law Journal: Vol. 81: Iss. 4, Article 8.Available at: http://www.repository.law.indiana.edu/ilj/vol81/iss4/8Regulating the Commander in Chief:Some TheoriesSAJKRISHNA PRAKASH*Recent events have caused scholars to consider a long ignored issue: the relationbetween the commander in chief (CINC)1 and Congress's powers to regulate the armedforces and captures. 2 The famous Bybee memorandum brought this issue to the forewhen it asserted that Congress could not interfere with "the President's direction ofsuch core war matters such as the detention and interrogation of enemy combatants.3The memo's critics scoffed at this claim, insisting that Congress may regulate thedetention of enemy soldiers. With their articles in this issue, Dean Harold Koh, NeilKinkopf, and others have added their voices to the clamor against the Bybee memo.Read in isolation, the Constitution's text does not detail the scope of presidentialand congressional powers over the conduct of a war. Notwithstanding its relativeemptiness, both sides of this issue seem content to make arguments that rely almostexclusively on the text. As a result, both sides have chosen to make textual claims thatlargely beg the question. In this war of words, the opposing parties are firing blanks.To advance a properly grounded answer, one must come to grips with English andAmerican history relating to commander in chief authority and the powers to regulatethe armed forces and captures. In the late eighteenth century, what did it mean to be acommander in chief? What did it mean to regulate the armed forces and captures onland and water? (E.g., does "captures" refer to armaments, soldiers, land, or somecombination?) Not having conducted this research, I will neither defend theconstitutional arguments found in the Bybee memo nor join the legions who havecontested its conclusions.Of course, having sidestepped precisely what is desperately needed, perhaps verylittle else should be said. Nonetheless, this brief essay describes how the variouspowers related to the conduct of a war might interact. Hopefully some systematizing in* Herzog Research Professor of Law, University of San Diego School of Law. Thanks toDawn Johnsen and the American Constitution Society for inviting me to participate in theSymposium. Thanks to Mike Paulsen and Mike Ramsey for comments.1. It might seem that the Constitution grants the President a military title--"commander inchief'-and not a power. See U.S. CONST. art. II, § 2 ("The President shall be Commander inChief of the Army and Navy .... ). Nonetheless, one cannot be a true commander in chiefunless one has certain powers. Hence many suppose that the Constitution implicitly grantspowers to the President when it makes him commander in chief. Others suppose that theCommander-in-Chief Clause merely removes all doubts that the President has military authoritythat has arguably been conveyed by the grant of executive power. See id. § 1 ("The executivePower shall be vested in a President of the United States of America."). For discussions of whythe grant of executive power conveys actual power to the President, see Saikrishna Prakash, TheEssential Meaning of Executive Power, 2003 U. ILL. L. REv. 701 (2003); Saikrishna Prakash &Michael Ramsey, The Executive Power over Foreign Affairs, I I l YALE L.J. 231 (2001).2. See U.S. CONST. art. I, § 8, cls. 11, 14.3. Memorandum for Alberto Gonzales Re: Standards of Conduct for Interrogation under18 U.S.C. §§ 2340-2340A, at 31 (Aug. 1, 2002), http://www.washingtonpost.comwp-srv/nation/documents/dojinterrogationmemo20020801.pdf [hereinafter Memorandum].INDIANA LAW JOURNALthis area may make it easier for the next scholar to make sense of seemingly opaquetext.Although one might generate any number of theories about the interaction of theCommander in Chief Clause and Congress's war regulatory powers, four seem mostplausible. This essay sketches these theories with sufficiently broad strokes that noneof these sketches will satisfactorily answer questions about who may regulate certainaspects of a war. In particular, these theories will tell us nothing about whether theBybee memo or its critics have the better argument about whether Congress can limitthe CINC's ability to order coercive interrogation techniqueS.First, it is possible to suppose that congressional and presidential powers do notoverlap at all. This "Separation Thesis" might be true because no one in the eighteenthcentury would have understood the commander in chief authority and the power toregulate the armed forces and captures to ever intersect. They might have beenregarded as distinct powers, just as the power to establish post roads and the power topardon might not be thought to overlap at all. Alternatively, they might be separatepowers because the Constitution carves out regulatory authority from the CINC power,such that the President does not have any power to regulate the armed forces orcaptures. In the absence of express congressional authority, the President might havebeen able to regulate the armed forces and captures pursuant to his authority as CINC.But the express grants of authority to Congress are meant to be exclusive grants thatthe President cannot simultaneously enjoy. If the Bybee memo implicitly adopted theSeparation Thesis, it must have assumed that regulating the use of torture was neither aregulation of the armed forces nor a regulation of captures. Not being either, thePresident could use his CINC authority to establish interrogation techniques.By itself, the Separation Thesis tells us nothing about who may exercise a particularauthority. People can agree with this theory and yet disagree about its implications inany particular case. The Bybee memo seems to adopt the view that the power toregulate torture is an exclusive power derivable from the President's role as CINC.4 Onthe other hand, one could suppose that regulation of torture is a regulation of the armedforces or amounts to a regulation of captures, in which case the Separation Thesisposits that the President has absolutely no power in this area.This Separation Thesis would pose a practical problem should Congress decline toregulate the armed forces or captures. For instance, if Congress never regulates thearmed forces, the President could not step into the breach and unilaterally regulatethose forces himself. Similarly, if Congress does not regulate captures, there can be noregulation of captures, for under the Separation Thesis the President cannot regulatecaptures in the least. Of course, there is the mirror problem. Should the Presidentabdicate his responsibilities as CINC during wartime, Congress could neither act as aplural CINC nor appoint an ersatz CINC to make decisions committed to the actualCINC.5A second thesis (the Coterminous Thesis) posits that the powers are coterminous, orat least largely so. The power to act as commander in chief includes a power toregulate soldiers and captures, while the power to regulate soldiers and captures4. See Memorandum, supra note 3, at 31.5. This paragraph's discussion is premised on the notion that the President and Congresscannot delegate their own powers. If each can delegate its own powers, some of theseconsequences are greatly mitigated.[Vol. 81:13191320REGULATING THE COMMANDER IN CHIEFlikewise includes all the powers associated with being commander in chief. If thepowers are coterminous, it naturally invites the question of whose rules will governwhen there is a conflict. Although it is possible to suppose that the President's rulesalways take precedence, or that the last-in-time rule trumps, it surely is far more likelythat Congress's rules should trump whenever there is a conflict. The conclusion thatcongressional statutes trump executive regulation is hardly unique to war powers.Congress likely has the ability to prescribe the manner in which the President executesthe law. Nonetheless, when Congress chooses not to do so, the President has aconstitutional right to fill in those law execution gaps (this right arises from the grant ofexecutive power and his associated role as chief executive).6 The President's lawexecution power is defeasible in the same way the President's CINC power might bewhen it comes to regulation of troops and captures: the President has his way untilCongress speaks to the contrary.In a system of overlapping powers, there is an ever-present question of preemption.There would also be the related and difficult question of whether congressionalregulation actually conflicts with presidential regulation. Justice Robert Jacksonfamously wrote of the difficulties of deciding whether Congress had approved ordisapproved of presidential actions in war and foreign affairs. Just as we ask whetherCongress has field-preempted some area of state law, we might have to inquire whethersome congressional regulation of the armed forces field-preempted some executiveregulation.A third possibility is what we might call the Partial Overlap. It is possible tosuppose that the two powers overlap in some ways, 8 but that each also has an exclusivesphere. While the President might have some authority to regulate the armed forces byvirtue of his CINC power, it is possible to suppose that he does not have all the powerthat Congress has. It would follow that some aspects of the powers to regulate thearmed forces and captures are exclusive to Congress. For instance, while the Presidentmight create training rules that he could enforce via removal, 9 perhaps he could not gofurther and imprison a soldier for failing to follow them. On the other hand, Congressmight both create training rules and provide for the punishment of those who flout therules.Likewise, Congress would have some authority over aspects of the CINC power, butthere would be other CINC aspects that Congress could not reach despite its authorityto regulate the armed forces and captures. Many scholars clearly believe that thePresident has some exclusive CINC power because they admit that Congress cannotregulate tactical decisions involving the retreat and advance of soldiers. Others mightsuppose that Congress cannot regulate the deployment of military hardware.6. See Saikrishna Prakash, Regulating Presidential Powers, 91 CORNELLL. REV. 215,249(2005) (book review).7. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J.,concurring).8. For reasons discussed earlier, one might suppose that when congressional andpresidential powers overlap, congressional rules trump contrary presidential ones in certainareas. See supra text accompanying note 4.9. For a discussion of the President's power to remove, see Saikrishna Parkash, Removaland Tenure in Office, 92 VA. L. REV. (forthcoming Dec. 2006).2006]INDIANA LAW JOURNALThe final theory posits that the President has all the powers that Congress has andmore, but when Congress acts in its more limited sphere, its rules always trump thePresident's. As suggested earlier, when Congress's regulations conflict withpresidential rules on the armed forces and captures, congressional regulations trumpthe President's. At the same time, the President has certain exclusive authorities thatderive from his role as CINC (such as the sole power to set battlefield tactics).Presumably, these authorities are exclusive because these CINC-derived powers do notconstitute or involve regulation of armed forces or of captures. If these powers do notconcern the regulation of armed forces or captures, then the Congress clearly cannothave any claim over them.This last thesis seems the most plausible. First, it makes good sense to suppose thatcongressional inaction would not generate regulatory paralysis, since even in theabsence of congressional regulation, the President could regulate the armed forces onhis own. As commander in chief, the President may command-regulate, if you will-the troops in any number of ways. Although the President likely could not regulatecaptures made by private citizens, perhaps he could regulate captures by the armedforces. Second, it is consistent with the notion that there are some things that Congresscannot do, such as set battlefield tactics.Ironically, it is possible to read the Bybee memo and its criticisms as both endorsingthe last thesis. The Bybee memo says nothing about congressional power. Nonetheless,there would have been no need to refer to certain powers as being "core" powers (asthe memo did' °) unless others could be regarded as peripheral. And if the core isunregulable (as the memo clearly argues"), it might very well be that the periphery isregulable. Hence the Bybee memo could be read as implicitly suggesting that whileCongress cannot trump core CINC powers over the treatment of enemy soldiers,Congress could trump certain peripheral CINC powers.12Similarly, the critics of the Bybee memo maintain that while the President has someexclusive authority over tactical decisions involving the advance and retreat of soldiers,he has no such authority over the interrogation of enemy soldiers. Given that critics ofthe Bybee memo seem opposed to any claim that the President's CINC powers areentirely exclusive but nonetheless admit that some powers are exclusively thePresident's, it seems quite possible that the critics have adopted the last thesis.The very fact that both the Bybee memo and its critics might have the same generaltheory about the Constitution points to interesting possibilities. There may be far lessthat separates the two sides than they suppose (or that they would care to admit). Forinstance, if one takes the view that the President must have tactical control of abattlefield,' 3 it is not too far a leap to the conclusion that he may order the torture of10. See Memorandum, supra note 3, at 38.11. See id. at 38-39.12. The very idea of an unregulable "core" naturally invites questions about a regulable"periphery."13. Although the notion that the President must have exclusive tactical control of themovement of forces on a battlefield seems near universal, there is nothing obvious about it. IfCongress can order the shifting of troops in times of relative peace (think of the closure ofmilitary bases), it is not obvious why Congress could not order the battlefield retreat of soldiers.Whether or not we are at war, one might seem a regulation of soldiers as much as the other.Moreover, the President is CINC whether we are at war or not, and the text of the Constitution1322 [Vol. 81:1319REGULATING THE COMMANDER IN CHIEFenemy soldiers. Indeed, the Bybee memo traded on the widespread notion that thePresident must control tactics on a battlefield when it suggested that he may also ordercoercive interrogation techniques.' 4 The critics of the Bybee memo have neverreconciled their ready willingness to concede that the President has the sole authorityto make tactical battlefield decisions with their unremitting hostility to the Bybeememo's view that Congress cannot regulate the interrogation of enemy soldiers.Perhaps this is so because they suppose that coercive techniques will occur far from thebattlefield. But this just assumes away the obvious question: what if the Presidentorders the use of coercive techniques on the battlefield? If the President has the soleauthority over battlefield advances and retreats, why does he lack the sole authorityover battlefield interrogations?The same argument can be made against the authors of the Bybee memo. Had theBybee memo discussed where congressional power begins and ends, the obvious issuewould have been why Congress could regulate x or y (however far the authors wouldcare to admit), but could not regulate interrogation techniques. When lines must bedrawn in the face of ambiguous text (and without resort to history), any particular lineseems somewhat arbitrary.Even if the last theory makes good policy sense, it might be way off, at least as amatter of the original understanding. We just cannot say which theory is right in theabstract. Until we do some difficult historical research about the original meaning ofthese various powers, all we can do is make somewhat educated guesses.Far too many have avoided undertaking this research (the author included). Somescholars, it seems, have tended to leap to conclusions based on their policy preference.This seems particularly true of the Bybee memo's numerous critics. For many, the goalseems to be to bar the use of torture. Unless the Constitution bars the torturing ofenemies (a proposition advanced by Dean Koh in his speech15 ), however, it wouldseem that the very arguments made by the Bybee memo's critics could be used tosuggest that Congress could order U.S. soldiers to torture enemy combatants. If thepower to regulate the armed forces and captures permits a ban on torture, why wouldnot the same powers authorize Congress to require torture? More ominously, Congressmight order soldiers "to take no prisoners"-to shoot all enemy soldiers-somethingthe Constitution surely says nothing about one way or the other. 16 If the policy goal isto bar all torture, trying to find some structural reason for why Congress's statutoryprohibition of torture must trump the President's contrary preference simply will notestablish a permanent and solid barrier to torture. Those who oppose torture must makesustained arguments about why the Constitution bars such wartime tactics, whoevermight order it.Arguments about the structural Constitution that seek to further a particular moralview are likely to be utterly feckless. Torture may be an evil necessary for thegives us little reason to suppose that the President has more CINC power during wartime. Theargument that the President must have exclusive control over the operations on a battlefieldmight be right, but it hardly arises from a clear implication of the text. More likely, it stems froma shared intuition that Congress should not be involved in day-to-day tactical decisions.14. See id. at 39-41.15. Dean Koh advanced this proposition in his speech, Harold Hongju Koh, Can thePresident Be Torturer in Chief?, 81 IND. L.J. 1145, 1157-60 (2006).16. Presumably, all these things might be said of the Bybee memo's view of the CINCpower as well.2006] 13231324 INDIANA LAW JOURNAL [Vol. 81:1319successful prosecution of war against Al-Qaeda, or an unspeakable act that benefitsabsolutely no one. Whatever it is, these difficult moral questions have little to do withwhether the Constitution enables the President to order the use of coerciveinterrogation techniques in the face of a statute that prohibits such means.

Regulating the Commander in Chief: Some Theories

https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1490&context=ilj

Regulating the Commander in Chief: Some Theories

Abstract

Similar works

Full text

Available Versions

Indiana University Bloomington Maurer School of Law