Romney’s commitment to law even in times of war

Douglas W. Kmiec

Chair and Professor of Constitutional Law, Pepperdine University; Constitutional Legal Counsel to President Reagan and the first President Bush, Professor Kmiec has volunteered to assist Governor Romney with legal issues.

There is probably no more important executive power topic than the relation between law and war. For example, Chris Matthews asked Governor Romney whether he would need the authorization of Congress to take military action against Iran’s nuclear facilities. Soundly, the Governor responded that his overriding consideration as President of the United States would be to do what is "in the best interests of the United States to protect us against a potential threat." However, because the Governor also commented that " he would consult legal counsel on the range of his available authority," he has been taking some flak.

This criticism is wholly unwarranted. The decision to go to war ought not to be made lightly or without the full benefit of the collaboration of both political branches, and whenever feasible, consultation with our allies. This is precisely what the Governor said. As much as possible, he said, "you want to have the agreement of all the people – leadership of our government as well as our friends around the world as those circumstances are available." The judiciousness of that statement should be applauded worldwide. In itself, it illustrates how Romney, unlike some other candidates, refuses to engage in bellicose rhetoric for the purpose of pandering for votes. But do not be misled, Romney’s no nonsense business acumen makes him no international pushover. For example, Romney has forcefully elaborated on how – by not making concessions to the buffoonery of the present Iranian power structure – the premise of Matthews question could be successfully met without military intervention.

But when war is unavoidable, what about all the law talk and the consultation with lawyers? Is this faithful or inconsistent with our constitutional expectations for a president? The answer is quickly found by even the most cursory examination of the constitutional convention of 1787. War was not to be exempted from the rule of law in our constitutional design. The founders created a constitutional system in which the war power was consciously divided between the president and the legislature. It was anticipated that the president would and should be able to respond with dispatch largely in the context of sudden attack. Beyond that, the framers wanted to give the political branches – the president and the legislature together – as much flexibility as they would need to meet the unforeseen. In this respect, the founders deliberately changed the phraseology from to "make" war to "declare" war, recognizing, as implicit in Mr. Matthews’ all too realistic question, that external forces could force a war upon the United States without its desire. That said, should war come, the president would be able to take unilateral action to meet it, recognizing that he would have an ultimate obligation to affirm the licitness or legality of war by seeking a legislative declaration. Contrary to popular belief, the declaration itself was not synonymous with a categorical requirement of pre-authorization. Rather, such declaration – whenever sought and given – would be affirming of the lawfulness of the actions that had been taken or were to be taken yet.

The fact of the matter was that the founders didn’t really want to put war making power in the hands of either the president or the Senate. As George Mason articulated, he "was against giving the power of war to the executive, because not safely to be trusted with it, or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war but for facilitating peace." Given that admonition, President Washington declared neutrality in the conflict between England and France, and every successor President, before breaching the peace or neutrality, must take seriously that his oath is to "preserve, protect and defend the Constitution of the United States," which of course is just a long way of expressing an obligation to comply with the law.

Then and now, genuine peace is the aim of the United States. But the premise of Mr. Matthews’ question was that the President of the United States was confronted by a nation with nuclear capacity that had anything but peace on its mind. This is a question not to be glibly answered, for it is more difficult than even the founding generation could anticipate. It involves neither a sudden attack nor a consciously deliberated decision to go to war in an extended, conventional sense. The whole point of preemption is avoidance of an extended war. That said, modern conflicts like Iraq give reason to doubt the ability to surgically preempt in many instances, and in any case, it is seldom clear where preemptive action will lead. In the constitutional convention of 1787, Roger Sherman noted that "the executive should be able to repel and not to commence war." Is a preemptive war, an act of repelling or an act of commencing? President Romney wisely would not rush head long into such conflict, at least not without seeking to discern from the best minds – of legal, foreign affairs and military capability – whether it was "in the best interests" of his nation.

Shakespeare in Henry VI said: "the first thing we must do is kill all the lawyers." This passage is given several different interpretations. As a lawyer, law teacher, and former legal counsel to two presidents, I remind people that one view of this admonition often surprises people who are used to modern day lawyer jokes. Arguably, the speaker in Shakespeare’s play (Dick the Butcher) was not making this recommendation in order to improve society, but to destroy it. For all of their faults, and there are many, lawyers do have the ability to check the abuse of power and in so doing to ensure that the civilized world does not rush headlong into chaos.

It was this thought that lay behind Governor Romney’s entirely appropriate debate response. Candidates too willing to disregard the obligations of the law, be it the law of the Constitution or of our international agreements, do us no favor, and indeed may endanger our very safety. Indeed, Governor Romney’s response is as old as the union itself. To be sure, in this over legalized world, the notion of consulting with lawyers to know the scope of authority against a terrorist force that is the very antipathy of law has an odd resonance. Indeed, in a radio interview, my former colleague in the Reagan administration Ted Olson who has now signed on with Rudy Giuliani, opined that "this whole issue of consulting with lawyers" reminded [him] that "you need to be ready to act and without having to go get a legal opinions."

That’s a curious comment coming from Mr. Olson, former head of the Office of Legal Counsel and Solicitor General of the United States, and who has devoted a good deal of his life to writing legal opinions to presidents about the scope of their war power. On this, I could cite multiple examples, but perhaps it’s enough to make reference to Mr. Olson’s October 30, 1984 memorandum outlining in excruciating detail the legal authorities of the President and the Congress in times of war. As Mr. Olson wrote, "on a number of occasions during this Administration, this Office has provided both written and oral legal advice to . . .the President and the National Security Council" regarding matters of war, including especially the War Powers Resolution. This was so even though no president has ever formally conceded the constitutionality of the resolution, and some have outright denied its constitutionality. Nevertheless, the duty to obey the law, or at least to be informed by what other responsible actors in the democracy believe is the law, prompted Mr. Olson to write multiple legal opinions in connection with the deployment of United States Armed Forces in Lebanon, the provision of military assistance and intelligence to our allies in Central America, the deployment of sophisticated radar aircraft in Chad and in the Sinai, responses to an armed attack on our armed forces in the Gulf of Siddra, the deployment of troops to Grenada, and in various other circumstances." Indeed, it was Mr. Olson’s intent in his October 1984 memorandum, as he put it, "to summarize the highlights of that advice . . . to provide guidance to you and to our respective successors in future analyses of [war related problems]."

Mr. Olson’s exposition of the legal questions pertaining to military engagements was thorough and responsible, and his initiative in leaving a summary of those matters for his successors, including myself, who relied upon his good advice in advising both President Reagan and the first President Bush in several matters of a military nature, including executive authority as it related to Iran Contra and strategies leading up to the capture of Manuel Noriega, is much to be applauded. What is to be regretted is the tendency of some presidential candidates just to look and sound like a tough, as if, upon assuming the presidency in a time of war, law does not matter.

It is sometimes said that Lincoln needed to go beyond the law to save it. Perhaps, in extremis that is so. Yet, Lincoln would likely have been the first to concede that Presidents operating outside the law when making the awesome decision to commit the lives of their citizens to war are to be regretted, not revered.