Allison R. Hayward
Michael F. Williams*
In this paper, we seek to remind readers that the Commander in Chief Clause of the Constitution provides an important institutional limit on the authority of the President during times of war and emergency. On one level, the Clause empowers the Executive Branch at the expense of the Congress and the Judiciary, placing the most potent instruments of the nation under the President's control. On another level, however, the Clause compels the President to shoulder accountability for military operations. As policymakers formulate a military response to the terrorist attacks of September 11, they should ensure that any arrangement that grants command over the armed forces to an international or foreign entity comports with the Clause.
This analysis does not consider to what extent the Commander in Chief powers held by the President overlap or conflict with the constitutional war powers granted Congress. Nor does it consider to what degree acts of the Commander in Chief are subject to the limits in other parts of the Constitution, or to what degree the exercise of his powers is amenable to scrutiny by the courts. These domestic "checks and balances" questions have prompted compelling debate, but are beyond the scope of this paper.
II. The War Against Terrorism and the Intent of the Commander in Chief Clause
A recurrent theme since the attacks of September 11 has been the call for a "global war against terrorism." The need for a strong response to terrorism is beyond question, but the idea of a global war warrants attention for several reasons.
Describing as "global" the campaign against terrorism subjects it to two interpretations. "Global" might refer to the scope of America's response, warning those nations that support terrorists that the United States will not limit its campaign to Afghanistan or to the Middle East. The word "global" also connotes international collaboration. In that respect, many international luminaries hope that the response to September 11 will be driven by an international organization or a multinational coalition, rather than led by the United States. Under this conception of the "global war against terrorism," Kofi Annan, Secretary-General of the United Nations, announced that "[t]he 11 September attacks were assaults on humanity, and humanity must respond to them as one." This conception of a "global" response raises constitutional questions under the Commander in Chief Clause.
Article 2, Section 2 of the U.S. Constitution reads: "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." It guarantees that the President is empowered to act as the "first general" over America's fighting forces. In so doing, the Framers both provided for American civilian control over the U.S. military, and designated a single commander ultimately responsible for the deployment of these forces.
These twin purposes were important to the Framers. King George's abuse of military power and his attempts to subject civil authority to the military were objections raised in the Declaration of Independence. Civilian control over the military was intended to preserve the Republic from armed overthrow by an unfettered army, and would mean that the army and navy were trained and disciplined with civilian, not military, purposes in mind. Recall that at this time the nation had no standing army - with a standing army conceivably ready to fight at any moment (as we have today), the importance of civilian control would be more acute. Unitary command under the office of the President corrected command inadequacies evident in the Revolutionary war, when the Continental Congress for a time attempted to lead the army by committee.
The Framers also understood military power as a hallmark of sovereignty. The Declaration asserts the United States' intention to take up a "separate and equal station" among the powers of the Earth that, as free and independent states, would give them the "full power to levy war" and "conclude peace." Their understanding of the authority of sovereign nations has a long and distinguished pedigree. Hugo Grotius pointed out that a nation is sovereign only to the extent "its actions are not subject to the control of any other power, so as to be annulled at the pleasure of any other human will." He explained that a nation cannot delegate the power to make war and peace to the will of another unless it understands that it thereby loses its independence. Thus, a nation that delegates command power to another nation (or, in modern times, to an international organization), surrenders an essential attribute of what it means to be a nation. This second nation could use the military resources of the first nation for its own ends, no matter what the first nation perceived to be in its interest. Delegation of military command, whatever the specifics of the Constitution, would appear to be in fundamental conflict with the Framer's goal of establishing a new free and sovereign nation.
The prospect that the campaign against terrorism might generate a conflict with the Commander in Chief Clause is not merely academic. As Secretary-General Annan's remarks indicate, the Administration is under pressure from the United Nations and from many of our allies to temper the military response to the attacks. President Bush's campaign called into question the multilateralist policies of the Clinton Administration. As President, Bush appeared to favor personal dialogue with the leaders of other nations over wider discourse in international institutions. After September 11, however, many commentators declared as dead what they had perceived to be the unilateralist policies of the United States. Although the Administration has not expressly adopted an internationalist approach, a shift toward greater interaction with foreign nations is presumed to underlie the "global war" against terrorism.
III. Shared Command in the War Against Terrorism
The Administration could attempt to broaden the military response to terrorism through several arrangements affecting the command of U.S. forces. The most conventional of these arrangements is shared tactical command. The first news reports of U.S. special forces operations in Afghanistan described joint attacks by American and British commandos. When military forces from different nations collaborate in this way, the leadership of the forces must be carefully synchronized. Naturally, the decisions about when and how to strike cannot be left to a vote of the participating forces. Moreover, the exigencies of an operation may render it impossible for the American troops involved to obtain specific instruction from within the chain of command.
In such circumstances, American troops may act at the direction of a foreign leader, or a leader from the United States may provide orders to foreign personnel. The conditions under which this will occur are likely to be transitory and carefully delineated. A foreign leader who commands American personnel in this way has ad hoc authority, rather than broad discretion to control the objectives of members of the United States military. Because the armed forces of other countries have had recent experience in Afghanistan, or are more familiar with the people or terrain of Central Asia, it is likely that American and foreign forces will collaborate frequently in this way.
Further along the spectrum toward more intensive collaboration, the United States could provide personnel in support of long-term objectives administered by foreign governments or by international institutions. Peacekeeping missions sponsored by the United Nations, for example, often require American troops to serve under the command of foreign officers.
The long-term objectives of such service -- often nothing more than interposing oneself into a cooling dispute -- are established by the United Nations or by the United States in conjunction with other nations. In such circumstances, the United States reserves the right to establish terms of engagement, to condition its participation upon certain standards and objectives, and to withdraw its personnel if retrenchment is in the national interest. Furthermore, the American chain of command retains its control of those troops serving as "United Nations" peacekeepers. The direction of international leaders may supplement that of American officers, but it does not supplant American command. As the military operations in Afghanistan wind down, and the United States and its allies begin to consider what regime will replace the Taliban, the likelihood that American personnel will take on these sorts of missions grows greater.
Recent history teaches us that "nation building" will likely follow the resolution of the conflict in Afghanistan. During the early 1990s, the United Nations established a new government in Cambodia, complete with new civil institutions, public services, and other trappings of society. More recently, the United Nations sponsored similar nation-building operations in the Balkans. Afghanistan is a likely candidate for such comprehensive social restructuring, and the dramatic results contemplated by nation-building attempts simply will not materialize unless there is a strong military presence to maintain stability in a region. American troops probably will be a significant part of that presence, serving as soldiers, peacekeepers, and as law enforcement officers, until personnel from other countries can replace them.
A more extreme avenue for collaboration might be the development of an international force responsible for fighting terrorism. An anti-terrorist force comprised of military personnel from different countries was once clearly the stuff of fiction. After the attacks, the United Nations may propose the establishment of such a force. Kofi Annan and his predecessor, Boutros Boutros-Ghali, were the most aggressive Secretaries-General in history on the subject of Article 43 agreements, by which Members of the United Nations assign personnel from their armed forces to the command of the United Nations. Annan and Boutros-Ghali called specifically for the creation of a rapid-reaction force, capable of immediate insertion into international conflicts at the direction of the Security Council. It is quite understandable that the Secretary-General would wish to have an army of that sort at his disposal. The attacks of September 11 might provide the impetus for creating such a force, with the goal of combating terrorism wherever the Security Council finds it.
Whatever the merit of these arrangements as matters of policy, these examples of collaboration present a constitutional question: Are the arrangements consonant with the policies that underlie the Commander in Chief Clause? Because the Clause has not been the subject of litigation -- and under the political question doctrine, the courts may never define its meaning with precision -- it is useful to review the purposes of the Clause and U.S. historical practice.
IV. Possible Historic Precedents: U.S. Troops Under Foreign Command
The Constitution specifies that the President is to serve as Commander in Chief, and by implication prohibits another from acting in that capacity. As discussed above, at the very least the Commander in Chief Clause prevents command over our nations fighting forces from being transmitted away from our civilian President. Moreover, the Constitution designated his office to provide unitary civilian command over these forces. How can these principles be reconciled with occasions in which our forces have fought with those of other nations?
The United States placed troops under foreign command in two world wars and from time to time has entered into collective security agreements with allies. But most of these precedents do not violate the Commander in Chief Clause because they demonstrate limited ad hoc agency relationships where the final word remains with the President, rather than impermissible delegation of command authority in perpetuity under foreign command.
The most compelling instance of foreign command occurred during World War I. There, the United States was thrust into a conflict ill-prepared to fight. The nation's armed forces were but a fraction of that required to prosecute the war. For their part, German strategists had predicted in 1917 that it would take two years for the United States to rearm and influence the European ground war. To defend its Allies as well as U.S. interests, American troops were placed under Allied command in "amalgamated forces". Foreign command was intended to be temporary from the first, although a small fraction of U.S. troops remained in amalgamated forces at the war's end. True, U.S. forces were under actual foreign command in World War I for an extended period. But, this arrangement was intended to deal with a temporary emergency, extended far beyond the period intended, and does not alone provide a foreign command rationale in circumstances that do not display such exigencies.
Subsequent instances of foreign command are less striking. In World War II, American troops fought in coalition forces under allied theater commanders. These commanders answered to the Combined Chiefs of Staff, which included the U.S. Joint chiefs, whom themselves answered to the President. This structure preserved the President's ultimate say over the use of American forces. Our nation's collective security arrangements, such as with NATO, are merely promises to provide mutual security, but do not provide a specific wartime command structure.
One as-yet unexecuted collective wartime structure is contemplated by Article 43 of the UN Charter. Article 43 states that member nations will "undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security." Agreements have never been negotiated (for its part the United Nations Participation Act requires that any Article 43 agreement must be approved by Congress). The Security Council crafted a model Article 43 agreement in 1947, but no member has ever entered into one. As observed above, the UN may find that the global war against terrorism resuscitates consideration of Article 43.
This U.S. treaty obligation under the UN Charter, seemingly dormant for now, is probably the closest the President has come to an unconstitutional delegation of his Commander in Chief power. As contemplated in 1947, Article 43 agreements would put U.S. troops perpetually under total UN command. If challenged, any treaty obligation that conflicts with the Constitution must give way to the Constitution as supreme law of the land, hence, defenders of Article 43 cannot argue that the UN treaty somehow "amended" the Constitution's Commander in Chief provisions.
Although ultimate policy decisions were preserved with the President, the Clinton Administration engaged in broad delegations of operational command to foreign commanders in several peacekeeping contexts. Even here, however, the ultimate say over deployment, and the ability to alter or cease a military mission, remained with the President.
That is not to suggest that the Clinton Administration had conceded that the Constitution limited his flexibility to delegate. The Clinton Administration's Office of Legal Counsel declared that the President's Commander in Chief power permitted him to delegate command to any agent he chose, for any purpose he saw fit. This argument would seem to depart from conventional constitutional interpretation. After all, if the Constitution's Commerce clause limits the extent to which Congress can delegate its power to regulate interstate commerce (and the Supreme Court is finding in more and more cases that it does), it would follow that the Commander in Chief clause limits the extent to which the President can fob off command authority to foreign commanders outside his control. In both cases, the Constitution has assigned powers to certain actors with good reason, and those actors cannot ignore the Constitution at their discretion. In the case of the President, delegations that place U.S. forces under non-U.S. civilian command, or that disrupt the President's role as unitary commander of U.S. forces should not be tolerated.
The conventional view of the Commander in Chief places the President at the helm in the midst of a "traditional" war with another sovereign nation. But it should make no difference that the war against terrorism, Al Qaeda, and its supporters may not fit comfortably into this framework. The Commander in Chief Clause is not limited by its terms to command during war, and the President's command over the military is not diminished during peacetime. Some of the most sweeping acts of Executive war power occurred during the Civil War, which was a domestic conflict. To the extent the President's acts are justified by a state of emergency (rather than strictly by his command position), the proper area of inquiry is whether an emergency exists, not whether the dispute is with a foreign state.
V. Can U.S. Troops Serve Under Foreign Command in the War Against Terrorism?
With these principles in mind, it appears that American troops may serve under foreign leaders in the war against terrorism, but that any such arrangements should be scrutinized for consistencies with the purposes of the Commander in Chief Clause. The arrangements are more likely to comport with the Clause when they are temporary, ad hoc, and undergirded by the opportunity for American commanders to intervene with supervision if necessary. On the other hand, arrangements that are of an indeterminate duration, for which the objectives are not well-defined, and to which the United States has not provided an informed and explicit consent are likely to run afoul of the Clause. In terms familiar to most lawyers, a relationship between the United States and a foreign command that approximates "agency" is acceptable. A relationship in which the President appears to delegate his authority is not.
Under these standards, the shared command of U.S. forces in Afghanistan is probably constitutional. Those operations in which American commandos serve temporarily at the direction of British officers are like those in the early battles of World War II. American commanders conceive a strategy, and American and foreign personnel implement the strategy. The goals of their missions and, presumably, the terms of engagement are subject to the civilian control of the President, through the domestic chain of command. It is possible to imagine shared commands that deviate so far from the norm, in which accountability becomes so diffuse that the President has only tenuous control over the means or ends of an operation, that the shared command would violate the Clause. That outcome is likely to result from a failure of command rather than an unconstitutional arrangement, however. Again, by analogy to more familiar principles of law, shared command is probably "facially" constitutional under the Clause.
At the other end of the spectrum, a global force under Article 43 would probably violate the Clause. Final authority over American personnel could be seen to rest with the President in that the United States could probably withdraw from participation with a multilateral force, but the force's objectives, strategies, and tactics would be developed by foreign entities beyond the civilian authority of the Constitution. Moreover, withdrawal from the arrangement could be subject to a veto by one of the permanent members of the Security Council. Such a perpetual assignment of command -- all aspects of command -- would present a paradigmatic case of a violation of the Commander in Chief Clause. The President could escape accountability for the actions of troops fighting under an international command, or that the international leader could, before the President could react, require that the troops pursue goals or employ means that are inimical to American interests. Those are the dangers against which the Commander in Chief Clause guards, and such arrangements could not pass muster under the Clause as illustrated by original intent and historical practice.
A closer question is that of the long-term mission supervised by the United Nations or another international institution. The constitutionality of such an arrangement would depend on whether the President retained control over the goals of the mission, over the strategies used to attain those goals, over the important "macro-level" decisions concerning the troops, and whether American officers could supervise the day-to-day operations of the mission.
This category is not only the most amorphous as a matter of constitutional validity; it is the arrangement that is most likely to materialize as a substantial challenge to the President's authority. Even today, as ground forces have only begun sporadic operations within Afghanistan, Tony Blair and other world leaders are contemplating a new government to replace the Taliban. It appears that the question is no longer whether the United States will partake in rebuilding the political and social institutions of Afghanistan, but for how long American troops will remain there and at what cost. Policy makers should be wary, therefore, about whether any such operation requires the President to delegate his authority over our uniformed services, or whether the United States employs international institutions and allies to advance our goals, in cooperation with our military.
Civil libertarians caution that America's response to the attacks of September 11 should not impinge upon constitutional rights. Amidst the clamor for action in the wake of the attacks, their warnings are not entirely misplaced. Policy makers should be mindful of the Constitution as they strike against terrorism at home and abroad. We hope that this paper reminds policy makers that the structural mandates of the Constitution are as important for protecting liberty and accountability as the right to speech, or the right of due process. The Commander in Chief Clause is one such provision, and it ensures that our military remains united under one command, a command accountable to civilian authority. As the Administration explores ways to cooperate with our allies against terrorism, it should be mindful always of the limits that the Clause imposes upon the President's authority to delegate his responsibility as Commander in Chief.
* Allison R. Hayward is Of Counsel with Bell, McAndrews, Hiltachk & Davidian in Sacramento, California. Daniel Kelly is an attorney with Reinhart, Boerner, Van Deuren, Norris & Rieselbach in Milwaukee, Wisconsin. Michael F. Williams is currently a law clerk to the Hon. Douglas H. Ginsburg, Chief Judge of the United States Court of Appeals for the D.C. Circuit. The opinions expressed here are those of the authors and do not necessarily represent those of their clients or employers.