Legal Brief: War Powers and Executive Privilege

Legal Brief: War Powers and Executive Privilege — A Throwback to Afghanistan
This year marks the 20-year anniversary of when President George W. Bush asked for, and
received, congressional approval to permit him to send troops into Afghanistan in response to
the September 11, 2001 attacks on America. The troops conducted their military operation, but
some stayed behind on a peacekeeping mission. More specifically, the troops who stayed were
there to assist the UN forces that would eventually take over the operation. Their mission, as
Bush told the American public, “is now for peace-keeping purposes only.” Let us assume that
the peacekeeping mission was a disaster. By the end of 2002, fighting again had erupted in the
region. The evening news was full of images of dead and injured American soldiers. Public
opinion shifted strongly against U.S. involvement in the region.
President Bush however, felt that the interests of the United States were at stake in that region of
the world, and decided to send in more troops specifically equipped for heavy combat. They
began launching attacks into the mountains between Afghanistan and Pakistan – both from the
air and on the ground. Congress was not consulted about Bush’s decision to escalate U.S.
involvement in the region leading many members of Congress to come out vocally against the
President.
By August 2003, members of Congress and the public began to question Bush's decision. All in
all, the American operation in Afghanistan was not going well: 1000s of soldiers had been killed;
many more had been seriously wounded. Finally, in late August Bush pulled out our troops; the
entire venture had been a major fiasco. Not only had many Americans died, but problems in the
region remained unresolved.
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Congress did not plan to let Bush off the hook so easily. In September of 2003, a special
House committee was created to determine whether President Bush had violated the War
Powers Act. This Act, passed in 1973 by a Congress fed up with its impotence during the
Viet Nam War, the War Powers Act contained the following key provisions:
• It set a 60-day limit on any Presidential commitment of United States troops abroad
without specific congressional authorization. The commitment could be extended
for another 30 days if necessary for the safe withdrawal of troops.
1 You may note that not much has changed since then, unfortunately, and that much of 2003’s history has repeated itself.
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• Unauthorized commitments might be terminated prior to the 60-day deadline through
congressional adoption of a concurrent resolution, a measure that does not require
presidential signature or approval.
• It requires the president to consult with Congress in every possible instance before
introducing United States armed forces into hostilities or into situations where imminent
involvement in hostilities is clearly indicated.
During the course of the hearings, it became clear that many more individuals within the
executive branch (besides George W. Bush) were involved (e.g., the Secretary of Defense,
Director of the CIA). At this point, the congressional committee asked the president to turn over
certain documents, particularly those describing the administration's strategic decision-making
processes and defense plans in the Afghanistan conflict. President Bush refused to do so, and
he sent his Attorney General (John Ashcroft) to Congress to explain his reasons.
Attorney General Ashcroft offered two explanations. First, in the administration's eyes, the
entire War Powers Act violated the separation of powers doctrine and interfered to an
impermissible (and, thus, unconstitutional) extent with the President's responsibilities as
Commander-in-Chief and as the “sole organ of foreign affairs.” Accordingly, the administration
argued that it did not need to comply with a congressional investigation on whether or not Bush
violated the Act. Second, the administration asserted that, even if the Act was constitutional,
the President could, under a claim of executive privilege, refuse to turn over sensitive
documents.
Members of Congress immediately took on Bush and Ashcroft in a U.S. District Court. They
argued that the War Powers Act was perfectly compatible with existing U.S. Supreme Court
doctrine. They also asserted that the President was using “executive privilege” as an excuse to
avoid cooperation with the committee and that he could not constitutionally do so.
Your Task in this Matter
Suppose you were a clerk to the District Court Judge in this case, and your task was to
evaluate the parties’ arguments and recommend to the judge how he should rule.
Using relevant Supreme Court doctrine, write a legal brief in which you recommend how the
judge should rule on both aspects of this case, the constitutionality of the War Powers Act and
the claim of executive privilege? Explain and justify your response.
Now consider this question: Would your response be different if America still had troops in
Afghanistan at the time this suit was pending? Why or why not? Again, be sure to justify
your response with reference to Court cases