Administration of war

Duke Law Journal

Volumn 58, Issue 8, 2009, Pages 2277-2311

  Yoo, John ^a,b  

^a CHAPMAN UNIVERSITY   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 68049084638     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (153)

1. The Federalist No. 74, at 500 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
2. The Federalist No. 70, at 473 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
3. See, e.g., John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, at 153-55 (2005).
4. Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 772-74.
5. Saikrishna Prakash & Michael D. Ramsey, The Executive Power Over Foreign Affairs, 111 Yale L.J. 231, 285 (2001).
6. See, e.g., Morrison v. Olson, 487 U.S. 654, 685-93 (1988) ("good cause" removal provision for independent counsel does not impermissibly burden president's power to control executive officials).
7. Bowsher v. Synar, 478 U.S. 714, 722-23, 726-27 (1986) ("[W]e conclude that Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.").
8. Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L.J. 541, 596-97 (1994) (president must have removal power to maintain control over executive branch personnel);
9. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 26-28 & n.119 (1994) (no consensus among Framers that president had complete authority to remove inferior officers).
10. U.S. CONST. art. II, § 2, cl. 2.
11. Morrison, 487 U.S. at 654.
12. Id. at 690 (quoting Humphrey's Ex'r v. United States, 295 U.S. 602, 627-29 (1935)).
13. Id. at 687, 689-91 (quoting Humphrey's Ex'r, 295 U.S. at 631).
14. Id. at 691-93.
15. See, e.g., Calabresi & Prakash, supra note 4, at 597 ("Inferior executive officers are, after all, the President's men and women, assisting him in the exercise of his constitutional powers. If he decides that they are impeding his administrative program or are simply doing a poor job in providing what Hamilton might have called an 'energetic' administration, he must be able to replace them with others.").
16. See, e.g., Lessig & Sunstein, supra note 4, at 47, 54 ("[B]eyond these enumerated aspects of 'the executive power' is an undefined range of powers that we would now describe as 'administrative power,' marking a domain within which one has a duty to act according not to one's own judgment, but according to the standards or objectives of a law. With respect to these latter powers, Congress has wide discretion to vest them in officers operating under or beyond the plenary power of the President.").
17. The Administrative Procedure Act excludes from its definition of an "agency" both "courts martial and military commissions" and "military authority exercised in the field in time of war or in occupied territory." 5 U.S.C. §§ 551(1)(F)-(G) (2006). It also excludes from its rulemaking and adjudication requirements "military or foreign affairs" functions. Id. 5 U.S.C. § 553(a)(1) (2006) (rulemaking); id. § 554(a)(4) (adjudication).
18. U.S. Const. art. II, § 2, cl. 2 ("The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States. .. .").
19. The Federalist No. 70 (Alexander Hamilton), supra note 3, at 472.
20. See id. ("Decision, activity, secrecy, and dispatch will generally characterise [sic] the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.").
21. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).
22. The Federalist No. 70 (Alexander Hamilton), supra note 3, at 476.
23. The Federalist No. 72, at 487 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
24. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
25. Id. at 319.
26. Id. (citation omitted).
27. See Yoo, supra note 4, at 55-87 (describing Anti-Federalist fear of standing armies)
28. See, e.g., Louis Fisher, Presidential WAR POWER 12-14 (2d ed. 2004); YOO, supra note 4, at 143-55.
29. U.S. Office of MGMT. & Budget, Executive Office of the President, Budget of the United States Government, FISCAL YEAR 2009, at 49 (2008), available at http://www.gpoaccess.gov/usbudget/fy09/browse.html.
30. U.S. Office of MGMT. & Budget, Executive Office of the President, Historical Tables: Budget of the United States Government, Fiscal Year 2009, at 80 tbl.4.2 (2008), available at http://www.gpoaccess.gov/usbudget/fy09/pdf/hist.pdf. These figures do not include the effects of the stimulus bill passed by Congress in early 2009 to address an economic recession.
31. Id. at 335 tbl.17.5.
32. Id. at 329 tbl.17.1.
33. Military doctrine refers to these efforts as "military operations other than war," which includes the support of civilian authorities during crises and disaster relief. Discussion of military doctrine in these areas can be found in U.S. Dep't of the Army, Field Manual 100-19: Domestic Support Operations (1993). One of the more significant expansions of the military role in domestic affairs occurred with the passage of the 1981 Military Cooperation with Law Enforcement Act, 10 U.S.C. §§ 371-74 (2006), which permitted extensive military support for anti-drug operations. Nonetheless, the Posse Comitatus Act, 18 U.S.C. § 1385 (2006), forbids the military from enforcing the law within the United States, unless otherwise permitted by the Constitution or other federal laws.
34. See generally James Q. Wilson, Bureaucracy: What Government Agencies Do and Why they do it (1989).
35. See generally Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, Yale L.J. 1170 (2007) (applying Chevron to foreign relations law, both directly and by analogy).
36. Cass R. Sunstein, Administrative Law Goes to War, 118 Harv. L. Rev. 2663 (2005) (applying "the logic of Chevron. .. to the exercise of executive authority in the midst of war");
37. Cass R. Sunstein, Clear Statement Principles and National Security: Hamdan and Beyond, 2006.
38. Sup. CT. Rev. 1 (tracing clear statement rules in national security versus individual liberties cases throughout American history to the present).
39. See generally Eliot Cohen, Supreme Command: Soldiers, Statesmen, and Leadership in Wartime (2002)
40. See generally Richard H. Kohn, The Erosion of Civilian Control of the Military in the United States Today, Naval War C. Rev., Summer 2002, at 9 (demonstrating that, although there may be no crisis, "civilian control has diminished to the point where it could alter the character of American government and undermine national defense").
41. For a popular history, see generally William Manchester, American Caesar: Douglas Macarthur 1880-1964 (1978)
42. Id. at 629-30.
43. Id. at 690-91.
44. Id. at 439-628.
45. Id. at 601-22.
46. Id. at 622.
47. Id. at 643-44.
48. 97 CONG. REC. app. at A4722 (1951) (statement of General Douglas MacArthur).
49. The most influential work along these lines is probably H.R. Mcmaster, Dereliction of Duty: Lyndon Johnson, Robert Mcnamara, the Joint Chiefs of Staff, and the Lies that Led to Vietnam (1997).
50. See Michael C. Desch, Civilian Control of the Military: The Changing Security Environment 22-29 (1999).
51. Samuel P. Huntington, the Soldier and the State: The Theory and Politics of Civil-Military Relations 456-57, 463-64 (1957).
52. DESCH, supra note 44, at 22-35.
53. Dale R. Herspring, The Pentagon and the Presidency: Civil-Military Relations from FDR to George W. Bush 335 (2005) ("The generals and admirals had reservations about Clinton when he came to office. First, there was the issue of the draft. Like many of his compatriots, Clinton did his best to manipulate the system to avoid being drafted during the Vietnam War.").
54. Id. at 333.
55. Id. at 338.
56. Id. at 332.
57. Id. at 297.
58. See id. at 331-35.
59. See Memorandum on Ending Discrimination in the Armed Forces, 1 PUB. Papers 23 (Jan. 29, 1993).
60. Herspring, supra note 48, at 341 (noting that Powell publicly stated that "homosexuality is not a benign behavior characteristic such as skin color").
61. See, e.g., Melissa Healy, Uproar over Gays in Military Muted at Ft. Knox, L.A. Times, Nov. 29, 1992, at A1 ("In Washington, where the political battle over lifting the ban [on gays in the military] has already been joined, top commanders have warned pointedly of the potential for plunging morale, mass resignations, and a breakdown in discipline. .. .").
62. Id. at 339.
63. See id. at 342.
64. Id. at 343-48 (describing disagreement between President Clinton and military leaders with regard to the scope of the military's mission in Somalia).
65. Michael R. Gordon, Powell Delivers a Resounding No on Using Limited Force in Bosnia, N.Y. Times, Sept. 27, 1992, at A1.
66. Colin L. Powell, Why Generals Get Nervous, N.Y. Times, Oct. 8, 1992, at A35.
67. Herspring, supra note 52, at 355-56.
68. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, Sept. 18, 1997, 2056 U.N.T.S. 211.
69. Christopher W. Jacobs, Taking the Next Step: An Analysis of the Effects the Ottawa Convention May Have on the Interoperability of United States Forces with the Armed Forces of Australia, Great Britain, and Canada, 180 MIL. L. REV. 49, 50 (2004). Kohn, supra note 33, at 21.
70. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002).
71. Kohn, supra note 33, at 19 n.52.
72. Id. at 14.
73. Herspring, supra note 48, at 381.
74. Id. at 388.
75. Id. at 395.
76. Id. at 399.
77. Michael Duffy, The Revolt of the Generals, Time, Apr. 24, 2006, at 41, 41.
78. Greg Newbold, Why Iraq Was a Mistake, Time, Apr. 17, 2006, at 43, 43.
79. See Michael C. Desch, Bush and the Generals, 86 Foreign AFF. 97, 104-05 (2007) ("[S]enior U.S. Commanders believed increasing the number of U.S. forces in Iraq would be counterproductive. .. [b]ut despite such protests, the military leadership was once again overruled by civilians in Washington-leading to the 'surge' taking place right now.").
80. Richard B. Myers & Richard H. Kohn, Response, The Military's Place, 86 FOREIGN AFF. 147, 148 (2007) (noting that senior military officials opposed increasing the number of U.S. troops in Iraq until shortly after the 2006 bombing of the Golden Mosque in Samarra).
81. But see Mackubin Thomas Owens, Response, Failure's Many Fathers, 86 FOREIGN AFF. 149, 150 (2007) (arguing that military leadership had a habit of exaggerating the need for troops overseas to protect the size of the defense budget or to discourage the executive from deploying a new mission).
82. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified in scattered sections of 10, 18, 28, and 42 U.S.C.).
83. Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 3 C.F.R. 918 (2002).
84. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
85. Id. at 626. For discussion of the decision, see Derek Jinks & Neal Kumar Katyal, Disregarding Foreign Relations Law, 116 YALE L.J. 1230, 1234 n.10 (2007) (providing a brief summary of the Hamdan case);
86. Julian Ku & John Yoo, Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch, 23 Const. Comment. 179, 181-99 (2006) (discussing the facts in Hamdan and the arguments presented by each side);
87. Posner & Sunstein, supra note 31, at 1223 (analyzing Hamdan under the Chevron doctrine established in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984))
88. The Authority to Prosecute Terrorists Under the War Crime Provisions of Title 18: Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2006).
89. See, e.g., Julian E. Barnes, Military Fought to Abide by War Rules, L.A. Times, June 30, 2006, at A1 (chronicling disagreement between JAGs and the White House over military commissions from 9/11 to the Supreme Court decision in Hamdan v. Rumsfeld).
90. See, e.g., Jonathan Mahler, The Bush Administration vs. Salim Hamdan, N.Y. Times, Jan. 8, 2006, § 6 (Magazine), at 47 (detailing the lawsuit brought by Salim Hamdan and his appointed JAG counsel challenging Hamdan's detention at Guantanamo Bay).
91. See id.
92. See, e.g., Barnes, supra note 81 (noting that JAGs argued that it was "a mistake to ignore the long traditions of military justice when trying terrorism suspects").
93. Boumediene v. Bush, 128 S. Ct. 2229 (2008).
94. Id. at 2262.
95. Russell Weigley, The American Military and the Principle of Civilian Control from McClellan to Powell, 57 J. Mil. Hist. 27, 31-32 (1993).
96. Kohn, supra note 33, at 9.
97. Id. at 10.
98. Desch, supra note 75, at 105-06
99. DESCH, supra note 44, app. at 135-38.
100. See Herspring, supra note 48, at 342-76; Myers & Kohn, supra note 75, at 147; Owens, supra note 75, at 149 (stating that the "military deserves a significant share of the blame" for the deterioration of the relationship between U.S. military leaders and civilians).
101. See 10 U.S.C. § 624 (2004); Weiss v. United States, 510 U.S. 163, 166 (1994).
102. Uniform Code of Military Justice art. 90, 10 U.S.C. § 890 (2006).
103. Peter D. Feaver, Armed Servants: Agency, Oversight, and Civil-Military Relations (2003). For an effort to apply the model to the question of the JAGs' actions in the war on terrorism
104. see Glenn Sulmasy & John Yoo, Challenges to Civilian Control of the Military: A Rational Choice Approach to the War on Terror, 54 Ucla L. Rev. 1815, 1831-45 (2007)
105. See Feaver, supra note 97, at 55 ("[T]he employee has an incentive to do as little work as he can get away with, all the while sending information back to the employer that suggests he is performing at an acceptable level. .. .").
106. See, e.g., Matthew Stephenson, Optimal Political Control of the Bureaucracy, 107 MICH. L. REV. 53, 58 (2008).
107. Anne Joseph O'Connell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post 9/11 World, 94 CAL. L. REV. 1655, 1702 (2006).
108. See Sulmasy & Yoo, supra note 97, at 1826-27 ("Part of the goal in designing laws and institutional structures, from the perspective of the principal, is to achieve the right balance between the efficient delegation of authority and the costs of monitoring and sanctioning the agent.").
109. Matthew D. McCubbins, Roger G. Noll & Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 Va. L. Rev. 431, 440 (1989) ("[T]he best solution is legislative specificity: writing into the law precisely what the agency is to achieve, and how it is to do so.").
110. See Stephenson, supra note 99, at 55 ("Forcing the politically responsive president to share power with a partially insulated, politically unresponsive bureaucracy tends to reduce the variance in policy outcomes, because bureaucratic insulation creates a kind of compensatory inertia that mutes the significance of variation in the president's policy preferences.").
111. U.S. Office of MGMT. & Budget, supra note 26, at 74-85 tbls.4.1-2.
112. See, e.g., John Hendren, Army Holds Its Ground in Battle with Rumsfeld, L.A. Times, Nov. 29, 2002, at A1 ("Rumsfeld. .. has presented a clear, if controversial, vision of modern warfare, one that uses fewer infantrymen and relies more on precision airstrikes and on small groups of special operation soldiers.").
113. Id. ("Army leaders, who still insist that some military engagements will require large ground battles, have grown increasingly alarmed about what role their service plays in Rumsfeld's vision.").
114. See Renae Merle, Army Scraps $39 Billion Helicopter, Wash. Post, Feb. 24, 2004, at A1 (describing the contentious cancellations of the Comanche helicopter and Crusader artillery system programs).
115. See Benjamin Schwarz, The Post-Powell Doctrine, N.Y. Times, July 21, 2002, § 7, at 11 (reviewing books challenging "contemporary military leaders' embrace of the Powell doctrine" (internal quotation marks omitted)).
116. See generally Colin L. Powell, U.S. Forces: Challenges Ahead, FOREIGN AFF., Winter 1992/93, at 32, 32-45.
117. Scholars, of course, will need the distance of time before they can make firm conclusions about the reasons for the counter-insurgency successes in Iraq. For an early journalistic account, see generally Thomas Ricks, the Gamble: General David Petraeus and the American Military Adventure in Iraq, 2006-2008 (2009).
118. See, e.g., John Yoo, Courts at War, 91 Cornell L. Rev. 573, 575-76 (2006). 112. Id. at 576.
119. Geneva Convention Relative to the Treatment of Prisoners of War, arts. 2-3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
120. See Sulmasy & Yoo, supra note 97, at 1835 ("[T]he laws of war. .. were drafted primarily to deal with two types of armed conflict-wars between nation-states, and internal civil wars.").
121. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted June 8, 1977, 1125 U.N.T.S. 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), adopted June 8, 1977, 1125 U.N.T.S. 609.
122. Message to the Senate Transmitting a Protocol to the 1949 Geneva Conventions, 1 PUB. Papers 88, 88 (Jan. 29, 1987) ("[W]e must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law.").
123. John Yoo, War by other means: An Insider's Account OF the War on Terror 34-35 (2006)
124. Feaver, supra note 97, at 67. See generally HARRY G. Summers, on Strategy: A Critical Analysis of the Vietnam War 33-44 (1982).
125. McCubbins et al., supra note 102, at 439.
126. Kate Zernike, Lawyers and G.O.P. Chiefs Resist Proposal on Tribunal, N.Y. Times, Sept. 8, 2006, at A1.
127. See Mahler, supra note 82, at 88 (detailing JAGs' efforts to challenge the military commission proceedings at Guantanamo Bay).
128. Feaver, supra note 97, at 205-06.
129. Id. at 206-07.
130. Deborah D. Avant, Political Institutions and Military Change: Lessons from Peripheral Wars 21-48 (1994).
131. Id. at 22.
132. Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub. L. No. 99-433, 100 Stat. 992 (codified as amended in scattered sections of 10 U.S.C.).
133. 10 U.S.C. § 151(b) (2006).
134. Feaver, supra note 97, at 82-83
135. See, e.g., THE 9/11 Commission Report 411-15 (2004), available at http://www.9-11commission.gov/report/911Report.pdf (recommending a national intelligence director to "manage the national intelligence program and oversee the agencies that contribute to it"). 131. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
136. 50 U.S.C. § 403(a)-(b).
137. Oliver Williamson, Mechanisms of Governance 66 (1996)
138. Id. at 70.
139. Id. at 67-70.
140. See, e.g., THE 9/11 Commission Report, supra note 130, at 401-09.
141. See generally the Federalist No. 70 (Alexander Hamilton).
142. O'Connell, supra note 100, at 1685-86.
143. Richard A. Posner, Preventing Surprise Attacks: Intelligence Reform in the Wake OF 9/11, at 42-43 (2005).
144. O'Connell, supra note 100, at 1676; see also Cass R. Sunstein, Essay, Deliberative Trouble?: Why Groups Go to Extremes, 110 YALE L.J. 71, 118 (2000) ("Like-minded people engaged in discussion with one another may lead each other in the direction of error and falsehood, simply because of the limited argument pool and the operation of social influences.").
145. Cf. Oliver Williamson, Corporate Control and Business Behavior 110-53 (1970).
146. O'Connell, supra note 100, at 1678.
147. Id. at 1679-83.