Kelly shared this and indicated we could post it. Many thanks!
Gordon
On May 29, 2013, at 11:58 PM, Kelly Young wrote:
Hello Mr. Wittes,
I have been following your Lawfare blog and a number of you and your colleagues articles in recent months and really enjoy your work.
I was wondering if you could assist me. I have recently worked on a project to craft a year-long college debate topic about restricting the war powers of the President. The topic will cover issues like UAVs, detention, covert ops, offensive cyber operations, etc. Schools around the country voted and this topic has been selected as our topic for the year. Over 200 schools will debate about this topic for the next school year.
We are currently working on how to properly phrase our debate resolution and we could use some assistance. If you don't mind, would you be able to briefly answering a couple of questions? This would help us tremendously as we move forward.
1. Is there a legal and functional difference between presidential war powers and Commander-in-Chief powers? Some people claim that war powers are a subset of broader C-in-C powers, but the literature on the subject since the 9-11 attacks seems to discuss them in a conflated fashion. Is there an important difference and does this conflation matter in your opinion?
If there's a meaningful difference, I think the difference is the other way around--that is, the war powers include a somewhat broader array of powers than the Commander-in-Chief powers do. For example, the president has the authority to negotiate peace treaties (ending wars); this is not a function of commander in chief power but it is a war power. The president also has the authority to veto a declaration of war--as he does any piece of legislation. This is, again, not really a commander in chief authority (it doesn't involve commanding the armed forces), but it is clearly a power pertaining to war and peace. Perhaps most importantly, war powers arguably include those powers not specified in the Constitution but granted the President by Congress--for example, the power to wage war against Al Qaeda and the Taliban authorized by the AUMF.
I think the real difference is just that the phrase "war powers connotes all of the powers available to the president that pertain to the power to make war, while the phrase Commander in Chief powers refers to those powers to command the the military that flow directly from the Commander in Chief Clause of the Article II.
2. If there is a difference, would actions such as the authority to use UAV/drone strikes and detention/rendition fall under Commander-in-Chief or presidential war powers? Does warrant-less wiretapping falling within or both sets of powers?
The power to use force against the enemy and to detain the enemy involve chiefly the congressionally granted authority to use force under the AUMF. They also necessarily involves some degree of inherent presidential authority to command the military--though the Obama administration has downplayed this particular source of its power.
The warrantless wiretapping program is now also authorized by Congress (under the FAA). Before that statutory authorization, however, the administration claimed authority to do it under the AUMF. And before, it claimed the inherent Commander in Chief power to do it. So again, a mix of different sources of power.
3. If we make the claim, " we should increase restrictions on the war powers of the President of the United States," do you think that
This question appears to have been cut off.
Here are some examples of the resolutions being discussed if this helps contextualize my questions:
Resolved: the United States federal government should increase statutory restrictions on one or more of the following [Commander in Chief / presidential war powers] of the President of the United States: targeted killing attacks launched from unmanned aircraft systems; offensive cyber operations; warrantless domestic electronic surveillance; covert operations; or detention of enemy combatants.
I would use the more capacious phrase "war powers" in any of the following resolutions.
Resolved: the United States federal government should increase statutory restrictions on the [Commander in Chief / presidential war powers] of the President of the United States to: utilize targeted killing attacks launched from unmanned aircraft systems; conduct offensive cyber operations; engage in warrantless domestic electronic surveillance; conduct covert operations; detain enemy combatants; or introduce United States Armed Forces into hostilities.
Resolved: the United States federal government should increase statutory restrictions on the [Commander in Chief / presidential war powers] of the President of the United States to: utilize targeted killing attacks launched from unmanned aircraft systems; conduct offensive cyber operations; conduct covert operations; or introduce United States Armed Forces into hostilities.
Resolved: That the United States federal government should increase statutory restrictions on the war powers of the President of the United States.
Resolved: That the war powers of the President of the United States should be substantially restricted.
Resolved: That the United States federal government should statutorily restrict powers claimed by the President of the United States from The Authorization to Use Military Force.
Resolved: Powers claimed by the President of the United States from The Authorization to Use Military Force should be substantially restricted by statute.
Thank you for your assistance - we would greatly appreciate any help in making this a better educational experience for the hundreds of college students that would debate this topic.
Sincerely,
Kelly Young
Kelly M. Young, Ph.D.
Director of Forensics/
Associate Professor
Communication Department
Wayne State University
585 Manoogian Hall
Detroit, MI 48201
(313) 577-2953