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Class 1:
What Are the Powers of the President in the "War Against Terrorism"?
Reading Assignment
- This web page. (For a pdf version, click here.)
- Pages 1-30 of the Casebook.
- US Constitution, (reprinted as an appendix to the Casebook)
Introduction
In September 2002, President Bush issued a new National Security Strategy of the United States. The document articulates a proactive strategy for responding to rogue states that relies on preemptive action rather than deterrence. The Strategy states:
The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.
On December 4, 2002, an Associated Press story reported that the Bush Administration had prepared a list of terrorist leaders that the CIA is authorized to kill if capture is impractical. In response to questions about the policy, National Security Adviser Condoleeza Rice said, "I can assure you that no constitutional questions are raised. There are authorities that the president can give to officials. He's well within the balance of accepted practice and the letter of his constitutional authority."
Questions
Read the Constitution and identify all of its provisions relating to foreign affairs.
Consider the following questions:
- What do the Constitutional provisions relating to foreign affairs provide?
- To whom do they grant authority over foreign policy?
- Do they support the issuance by the President of the National Security Strategy or the assertion by Ms. Rice that the President can authorize the killing of suspected terrorists?
Then, consider the general policy considerations involved:
- Should the same separation of powers principles apply to foreign and domestic affairs?
- If not, what are the justifications for treating foreign policy differently?
- Where should we draw the line between foreign and domestic affairs? Which issues fall into which category?