Loyola University Chicago, School of Law LAW eCommons Faculty Publications & Other Works 2011 The ommC ander-in-Chief and the Necessities of War: A Conceptual Framework John C. Dehn Loyola University Chicago, School of Law, [email protected] Follow this and additional works at: http://lawecommons.luc.edu/facpubs Part of the Military, War, and Peace Commons Recommended Citation John C. Dehn, The ommC ander-in-Chief and the Necessities of War: A Conceptual Framework, 83 Temp. L. Rev. 599 (2011). This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Faculty Publications & Other Works by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. TEMPLE LAW REVIEW © 2011 TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION VOL. 83 NO. 3 SPRING 2011 ARTICLES THE COMMANDER-IN-CHIEF AND THE NECESSITIES OF WAR: A CONCEPTUAL FRAMEWORK * John C. Dehn While the current Administration has largely abandoned claims of plenary presidential authority to fight the nation’s wars, courts, scholars, and policy makers continue to debate the nature and scope of the powers conferred by the September 18, 2001 Authorization for Use of Military Force. This Article examines primarily Supreme Court precedent to distill the general scope and limits of the President’s powers to fight the nation’s international and non-international armed conflicts. It concludes that the Supreme Court has expressly endorsed and consistently observed (although inconsistently applied) two concepts of necessity attributable to the Commander-in- Chief power. The first is military necessity: the power to employ all military measures not prohibited by applicable law and reasonably calculated to defeat a national enemy. The case law is reasonably clear that “applicable law” in this context includes all domestic and international law specifically applicable to armed conflict. Military necessity also encompasses a second type of necessity: public necessity. Analogous to the common law tort doctrine, precedent reveals that, in armed conflict, public necessity permits the abrogation of private, statutory, and even certain constitutional * Assistant ProfEssor, DEpartmEnt of Law, UnitEd States Military Academy; J.S.D. Candidate, Columbia UnivErsity Law School. This ArticlE was originally submittEd in partial satisfaction of thE rEquirEmEnts for thE MastEr of Laws dEgrEE at Columbia UnivErsity Law School. ThE author sErvEs in thE UnitEd StatEs Army and holds degrEEs from the United States Military Academy at West Point, the UnivErsity of Oklahoma College of Law (with highEst honors), ThE JudgE AdvocatE GEnEral’s Legal CEntEr and School, and Columbia UnivErsity Law School (JamEs KEnt Scholar). HE is also a graduatE of thE Army’s Command and GEnEral Staff CollEgE. The views expressed in this Article are solely the author’s and do not necessarily reflect those of the Department of DefEnsE, DepartmEnt of thE Army, or any othEr dEpartmEnt or agEncy of thE UnitEd StatEs governmEnt. The author thanks HEnry Monaghan, Thomas LeE, David Barron, TrEvor Morrison, David Wallace, Tim Bakken, Jody Prescott, Mark Welton and Richard V. Meyer for their comments on earlier drafts. Any rEmaining errors arE his alonE. 599 600 TEMPLE LAW REVIEW [Vol. 83 rights under sufficiently exigent circumstances. A third necessity related to war has been theorized but never clearly addressed by the courts: an alleged presidential power to take all actions necessary to counter an imminent threat to the nation’s existence. This is best understood as an extreme form of public necessity, here termed “governmental necessity.” This Article distills and relates these three forms of necessity, explaining how they inform and complicate questions regarding the President’s powers to conduct war. TABLE OF CONTENTS I. INTRODUCTION .................................................................................................601 II. THE ORIGINAL UNDERSTANDING OF THE SEPARATION OF POWERS OVER THE ARMED FORCES .........................................................................................608 A. The Commander-in-Chief Power and the Logical Fallacy of Jackson’s Third Tier................................................................................609 B. The Constitutional Design and Military Regulation................................612 C. Practice in Great Britain and the U.S. ....................................................613 III. THE ORIGINAL UNDERSTANDING OF THE SEPARATION OF POWERS OVER ARMED CONFLICT.............................................................................................616 A. Identifying Public Enemies—Bas and Talbot ..........................................616 B. Regulating the Scope of Hostilities—Little v. BerremE ...........................618 C. The Effect of International Law—Charming Betsy and Brown...............621 D. Interim Observations ...............................................................................625 IV. THE COMMANDER-IN-CHIEF’S WAR FIGHTING DISCRETION: THE CONCEPT OF MILITARY NECESSITY ..................................................................................626 A. Towards a Concept of Military Necessity................................................626 B. The Articulation of Military Necessity.....................................................629 C. Examining the Breadth and Limits of Military Necessity ........................631 1. The Civil War ...................................................................................631 2. Abrogating Rights in War—Notions of Public NEcEssity.................638 3. The Second World War....................................................................641 D. More Interim Observations .....................................................................644 E. Recent Cases in the Post-9/11 Conflict....................................................645 F. Clarifying the Confusion Regarding the Commander-in-Chief’s Authority in War......................................................................................648 V. EXTRAORDINARY EMERGENCY POWERS—THE POLITICS OF NATIONAL SECURITY AND THE RULE OF LAW ....................................................................651 A. Emergency Powers—Law or Politics? ....................................................652 B. Notions of “Governmental Necessity” ....................................................654 C. The Unclear Line Between Governmental, Public, and Military Necessity..................................................................................................656 D. The Necessary Limits of Military Necessity.............................................658 VI. CONCLUSION ....................................................................................................662 2011] THE COMMANDER-IN-CHIEF AND THE NECESSITIES OF WAR 601 I. INTRODUCTION Over a decade after the SeptembEr 11, 2001 attacks, the courts appear to be only marginally closEr to undErstanding thE prEcisE scopE and limits of thE authority grantEd to thE PrEsidEnt by CongrEss undEr thE Authorization for UsE of Military ForcE (AUMF). The AUMF Empowers the President to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the tErrorist attacks that occurrEd on SEptEmbEr 11, 2001, or harborEd such organizations or pErsons, in ordEr to prEvEnt any futurE acts of intErnational terrorism against the United States by such nations, organizations or persons.1 The courts have rejected, and a new Administration has abandoned (to an incrEasingly uncErtain ExtEnt), claims that thE PrEsidEnt has complEtE discrEtion to fight thE nation’s armEd conflicts in any mannEr the PrEsidEnt dEEms ExpEdiEnt. Public and scholarly debatEs about the President’s war powers havE centered on: the authority to use “Enhanced interrogation techniques” in apparent violation of both international and domestic law;2 thE authority to indEfinitEly dEtain a putativE enEmy fightEr (or “belligerent” or “combatant”);3 thE powEr to conduct dronE attacks bEyond 1. Authorization for UsE of Military ForcE (AUMF), Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001). 2. See, e.g., HUMAN RIGHTS WATCH, GETTING AWAY WITH TORTURE (2011); available at http://www.hrw.org/En/rEports/2011/07/12/getting-away-torturE (detailing allegEd violations by Bush Administration officials of intErnational and domEstic laws proscribing torturE); José E. AlvarEz, Torturing the Law, 37 CASE W. RES. J. INT’L L. 175, 179–98 (2006) (summarizing ways Bush Administration “twisted” international law); Mary Ellen O’ConnEll, Affirming the Ban on Harsh Interrogation, 66 OHIO ST. L.J. 1231, 1233 (2005) (arguing Bush Administration ignored international laws banning “coercive, cruel, inhuman, and degrading” intErrogation tEchniques); Jordan J. Paust, Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees, 43 COLUM. J. TRANSNAT’L L. 811, 824–38 (2005) (dEtailing Bush Administration violations of GEneva Convention and human rights law); Eric A. Posner & Adrian Vermeule, Should Coercive Interrogation Be Legal?, 104 MICH. L. REV. 671, 675 (2006) (proposing legalization of coErcive interrogation techniques, subject to numErous restrictions); Maj. ChristophEr B. Shaw, The International Proscription Against Torture and the United States’ Categorical and Qualified Responses, 32 B.C. INT’L & COMP. L.