Presidential Power and Constitutional Responsibility

IntroductionIn the days following the attacks on September 11, Congress granted the President authority to use "all necessary ... force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks."1 With this grant of power, President George W. Bush subsequently undertook a number of actions. He deployed military forces to invade Afghanistan and created a prison camp to detain captured "enemy combatants."2 He authorized aggressive interrogation practices and established military commissions to try those detained and interrogated. He created surveillance programs that included electronic monitoring of Americans and sought to avoid judicial review of his policies. All of these actions were said to be necessary to protect national security. Many of these policies were later modified and legitimated by congressional acts and continued by the subsequent administration. "Because the terrorist threat continues, the national emergency declared on September 14, 2001, and the powers and authorities adopted to deal with that emergency must continue in effect,"3 proclaimed President Barack Obama nearly a decade later, sustaining a state of emergency continuously in effect since the September attacks.In the immediate emergency circumstances in the months following the September attacks, the American people were led to believe that many questions about civil liberties or separation of powers needed to yield to the overwhelming pull of necessity, of national security, of selfpreservation. As Thomas Jefferson phrased it, "The laws of necessity, or self-preservation, of saving the country when in danger, are of higher obligation."4 Necessity possesses a compelling logic and motivation all its own. Necessity can set an agenda and compel the means for its fulfillment. Necessity's preeminence was so unquestionable under the circumstances following September 2001 that Attorney General John Ashcroft could admonish, 'To those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists."5 After all, James Madison recognized that "[i]t is in vain to oppose Constitutional barriers to the impulse of self-preservation,"6 whereas Alexander Hamilton urged that "[t]he authorities essential to the com- mon defense ... ought to exist without limitation."7 American policy and practice, the nation's values and laws, could be subject to, or suspended by, the presidential imperative to take all necessary action to protect national security. In exceptional times, as Jefferson elaborated, u[T]he unwritten laws of necessity, of self-preservation, and of the public safety, control the written laws of meum and tuum."8 Necessity provides a purported reason to act based on compelling external circumstances, relying on accidents of events, not principles or deliberative purposes.9In Jefferson's view, the president's first responsibility is to preserve the nation, even if that means prioritizing "unwritten laws of necessity" over enacted law.10 Following this reasoning, the president's primary duty as commander in chief is to respond to urgent circumstances with dispatch, even if that means foregoing broader policy deliberation. Lincoln, for example, claimed authority to violate otherwise operative laws by suspending habeas corpus:By necessary implication, when Rebellion or Invasion comes, the decision is to be made, from time to time; and I think the man whom, for the time, the people have, under the constitution, made the commander-in-chief... is the man who holds the power, and bears the responsibility of making it.11A strong form of this view found its way into official executive branch legal doctrine after September 11, in memos stating that "[t]he text, structure and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to ensure the security of the United States in situations of compelling, unforeseen, and possibly recurring, threats to the nation's security. …