Nonetheless, the long period of the Cold War and of active hostilities in Korea and Indochina, in addition to the issue of the use of troops in the absence of congressional authorization, further created conditions for consolidation of powers in the President.
In particular, a string of declarations of national emergencies, most[[Page 447]] under, in whole or partially, the Trading with the Enemy Act,\152\ undergirded the exercise of much presidential power.
In the storm of response to the Vietnamese conflict, here, too, Congress reasserted legislative power to curtail what it viewed as excessive executive power,
Whether the balance of power between President and Congress shifted at all is not really a debatable question. \152\Sec. 301(1), 55 Stat. 838, 839-840 (1941). \153\91 Stat. 1626, 50 U.S.C. Sec. Sec. 1701-1706. \154\Congress authorized the declaration of a national emergency based only on ``any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or the economy of the United States. . . .'' 50 U.S.C. Sec. 1701. \155\P. L. 94-412, 90 Stat. 1255 (1976).
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http://www.access.gpo.gov/congress/senate/constitution/art1.html
THE WAR POWER
Source and Scope
Three Theories.--Three different views regarding the source of the war power found expression in the early years of the Constitution and continued to vie for supremacy for nearly a century and a half. Writing in The Federalist,\1397\ Hamilton elaborated[[Page 306]] the theory that the war power is an aggregate of the particular powers granted by Article I, Sec. 8. Not many years later, in 1795, the argument was advanced that the war power of the National Government is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written Constitution.\1398\ Chief Justice Marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it.
In McCulloch v. Maryland,\1399\ he listed the power ``to declare and conduct a war''\1400\ as one of the ``enumerated powers'' from which the authority to charter the Bank of the United States was deduced. During the era of the Civil War, the two latter theories were both given countenance by the Supreme Court.
Speaking for four Justices in Ex parte Milligan, Chief Justice Chase described the power to declare war as ``necessarily'' extending ``to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns.''\1401\
In another case, adopting the terminology used by Lincoln in his Message to Congress on July 4, 1861,\1402\ the Court referred to ``the war power'' as a single unified power.\1403\ \1397\The Federalist, No. 23 (J. Cooke ed. ed.: 1937), 146-151. \1398\Penhallow v. Doane, 3 Dall. (3 U.S.) 53 (1795). \1399\4 Wheat. (17 U.S.) 316 (1819). \1400\Id., 407. (Emphasis supplied.) \1401\Ex parte Milligan, 4 Wall. (71 U.S.) 2, 139 (1866) (dissenting opinion); see also Miller v. United States, 11 Wall. (78 U.S.) 268, 305 (1871); and United States v. MacIntosh, 283 U.S. 605, 622 (1931). \1402\Cong. Globe, 37th Congress, 1st Sess., App. 1 (1861). \1403\Hamilton v. Dillin, 21 Wall. (88 U.S.) 73, 86 (1875).
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An Inherent Power.--Thereafter, we find the phrase, ``the war power,'' being used by both Chief Justice White\1404\ and Chief Justice Hughes,\1405\ the former declaring the power to be ``complete and undivided.''\1406\
Not until 1936, however, did the Court explain the logical basis for imputing such an inherent power to the Federal Government.
In United States v. Curtis-Wright Corp.,\1407\ the reasons for this conclusion were stated by Justice Sutherland as follows: ``As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agency--namely, the Con[[Page 307]] tinental Congress, composed of delegates from the thirteen colonies.
That agency exercised the powers of war and peace, raised an army, created a navy, and finally adopted the Declaration of Independence. . . . It results that the investment of the Federal Government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution.
The power to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal Government as necessary concomitants of nationality.''\1408\ \1404\Northern Pac. Ry. Co. v. North Dakota, ex rel. Langer, 250 U.S. 135, 149 (1919). \1405\Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398 (1934). \1406\Northern Pac. Ry. Co. v. North Dakota, ex rel. Langer, 250 U.S. 135, 149 (1919). \1407\299 U.S. 304 (1936). \1408\Id., 316, 318. On the controversy respecting Curtiss- Wright, see infra, Article II.
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A Complexus of Granted Powers.--In Lichter v. United States,\1409\ on the other hand, the Court speaks of the ``war powers'' of Congress. Upholding the Renegotiation Act, it declared that: ``In view of this power `To raise and support Armies, . . . and the power granted in the same Article of the Constitution `to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,' . . . the only question remaining is whether the Renegotiation Act was a law `necessary and proper for carrying into Execution' the war powers of Congress and especially its power to support armies.''\1410\
In a footnote, it listed the Preamble, the necessary and proper clause, the provisions authorizing Congress to lay taxes and provide for the common defense, to declare war, and to provide and maintain a navy, together with the clause designating the President as Commander-in-Chief of the Army and Navy, as being ``among the many other provisions implementing the Congress and the President with powers to meet the varied demands of war. . . .''\1411\ \1409\334 U.S. 742 (1948). \1410\Id., 757-758. \1411\Id., 755 n. 3.
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Excerpts from the "Report From Iron Mountain"
The basic authority of a modern state over its people resides in its war powers. (There is, in fact, good reason to believe that codified law had its origins in the rules of conduct established by military victors for dealing with the defeated enemy, which were later adapted to apply to all subject populations. [19]) On a day-to-day basis, it is represented by the institution of police, armed organizations charged expressly with dealing with "internal enemies" in a military manner. Like the conventional "external" military, the police are also substantially exempt from many civilian legal restraints on their social behavior. In some countries, the artificial distinction between police and other military forces does not exist. On the long-term basis, a government's emergency war powers - inherent in the structure of even the most libertarian of nations - define the most significant aspect of the relation between state and citizen.
The war system not only has been essential to the existence of nations as independent political entities, but has been equally indispensable to their stable internal political structure. Without it, no government has ever been able to obtain acquiescence in its "legitimacy," or right to rule its society. The possibility of war provides the sense of external necessity without which no government can long remain in power. The historical record reveals one instance after another where the failure of a regime to maintain the credibility of a war threat led to its dissolution, by the forces of private interest, of reactions to social injustice, or of other disintegrative elements. The organization of a society for the possibility of war is its principal political stabilizer. It is ironic that this primary function of war has been generally recognized by historians only where it has been expressly acknowledged - in the pirate societies of the great conquerors.
The existence of an accepted external menace, then, is essential to social cohesiveness as well as to the acceptance of political authority. The menace must be believable, it must be of a magnitude consistent with the complexity of the society threatened, and it must appear, at least, to affect the entire society.
The Functions of War
The visible, military function of war requires no elucidation; it is not only obvious but also irrelevant to a transition to the condition of peace, in which it will by definition be superfluous. It is also subsidiary in social significance to the implied, nonmilitary functions of war; those critical to transition can be summarized in five principal groupings.
1. {Economic}. War has provided both ancient and modern societies with a dependable system for stabilizing and controlling national economies. No alternate method of control has yet been tested in a complex modern economy that has shown itself remotely comparable in scope or effectiveness.
2. {Political}. The permanent possibility of war is the foundation for stable government; it supplies the basis for general acceptance of political authority. It has enabled societies to maintain necessary class distinctions, and it has ensured the subordination of the citizen to the state, by virtue of the residual war powers inherent in the concept of nationhood. No modern political ruling group has successfully controlled its constituency after failing to sustain the continuing credibility of an external threat of war.
3. {Sociological}. War, through the medium of military institutions, has uniquely served societies, throughout the course of known history, as an indispensable controller of dangerous social dissidence and destructive antisocial tendencies. As the most formidable of threats to life itself, and as the only one susceptible to mitigation by social organization alone, it has played another equally fundamental role: the war system has provided the machinery through which the motivational forces governing human behavior have been translated into binding social allegiance. It has thus ensured the degree of social cohesion necessary to the viability of nations. No other institution, or group of institutions, in modern societies, has successfully served these functions.
4. {Ecological}. War has been the principal evolutionary device for maintaining a satisfactory ecological balance between gross human population and supplies available for its survival. It is unique to the human species.
5. {Cultural and Scientific}. War-orientation has determined the basic standards of value in the creative arts, and has provided the fundamental motivational source of scientific and technological progress. The concepts that the arts express values independent of their own forms and that the successful pursuit of knowledge has intrinsic social value have long been accepted in modern societies; the development of the arts and sciences during this period has been corollary to the parallel development of weaponry.
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domestic support operations
(DOD) Those activities and measures taken by the Department of Defense to foster mutual assistance and support between the Department of Defense and any civil government agency in planning or preparedness for, or in the application of resources for response to, the consequences of civil emergencies or attacks, including national security emergencies.
Law Enforcement Agency
(DOD) Any of a number of agencies (outside the Department of Defense) chartered and empowered to enforce laws in the following jurisdictions: The United States, a state (or political subdivision) of the United States, a territory or possession (or political subdivision) of the United States, or to enforce US laws within the borders of a host nation. Also called LEA.
civil administration
(DOD) An administration established by a foreign government in (1) friendly territory, under an agreement with the government of the area concerned, to exercise certain authority normally the function of the local government, or (2) hostile territory, occupied by United States forces, where a foreign government exercises executive, legislative, and judicial authority until an indigenous civil government can be established. Also called CA administration.
civil affairs
(DOD) The activities of a commander that establish, maintain, influence, or exploit relations between military forces and civil authorities, both governmental and nongovernmental, and the civilian populace in a friendly, neutral, or hostile area of operations in order to facilitate military operations and consolidate operational objectives. Civil affairs may include performance by military forces of activities and functions normally the responsibility of local government. These activities may occur prior to, during, or subsequent to other military actions. They may also occur, if directed, in the absence of other military operations.
civil affairs activities
(DOD) Activities performed by commanders, staffs, Department of Defense elements and units, and foreign military forces that (1) embrace the relationship between military forces and civil authorities and population in areas where military forces are present; and (2) involve application of civil affairs functional specialty skills, in areas normally the responsibility of civilian government, which enhance conduct of civil-military operations.
civil affairs agreement
(DOD) An agreement which governs the relationship between allied armed forces located in a friendly country and the civil authorities and people of that country. See also civil affairs.
law of war
(DOD) That part of international law that regulates the conduct of armed hostilities. Also called the law of armed conflict. See also rules of engagement.
rules of engagement
(DOD) Directives issued by competent military authority which delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered. Also called ROE. See also law of war.
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U.S. Supreme Court
APPLICATION OF YAMASHITA, 327 U.S. 1 (1946)
'Mr. Sweet. Please explain what you mean by military commission.
'Gen. Crowder. That is our common law of war court, and was referred to by me in a prior hearing. (The reference is to the discussion of Article 15.)
This war court came into existence during the Mexican War, and was created by orders of Gen. Scott. It had jurisdiction to try all cases usually cognizable in time of peace by civil courts. Gen. Scott created another war court, called the 'council of war,' with jurisdiction to try offenses against the laws of war.
The constitution, composition, and jurisdiction of these courts have never been regulated by statute. The council of war did not survive the Mexican War period, since which its jurisdiction has been taken over by the military commission.
The military commission received express recognition in the reconstruction acts, and its jurisdiction has been affirmed and supported by all our courts. It was extensively employed during the Civil War period and also during the Spanish-American War.
It is highly desirable that this important war court should be continued to be governed as heretofore, by the laws of war rather than by statute.
' S.Rep.No.229, 63d Cong., 2d Sess., 59; cf. S.Rep. 130, 64th Cong., 1st Sess., 54-55. (Emphasis added.) See also Hearings before the Subcommittee of the Committee on Military Affairs of the Senate on Establishment of Military Justice, 66th Cong., 1st Sess., 1182-1183.
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(below is an example of Political Doctrine in the context of legal deception and ruse, the 5th ammendment is a priviledge that is granted to maintain "political power" (support of the People + military).
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APPLICATION OF YAMASHITA, 327 U.S. 1 (1946)
The answer is plain. The Fifth Amendment guarantee of due process of law applies to 'any person' who is accused of a crime by the Federal Government or any of its agencies.
No exception is made as to those who are accused of war crimes or as to those who possess the status of an enemy belligerent.
Indeed, such an exception would be contrary to the whole philosophy of human rights which makes the Constitution the great living document that it is.
The immutable rights of the individual, including those secured by the due process clause of the Fifth Amendment, belong not alone to the members of those nations that excel on the battlefield or that subscribe to the democratic ideology.
They belong to every person in the world, victor or vanquished, whatever may be his race, color or beliefs.
They rise above any status of belligerency or outlawry. They survive any popular passion or frenzy of the moment.
No court or legislature or executive, not even the mightiest [327 U.S. 1, 27] army in the world, can ever destroy them.
Such is the universal and indestructible nature of the rights which the due process clause of the Fifth Amendment recognizes and protects when life or liberty is threatened by virtue of the authority of the United States. ===============================================================
Belligerent
Belligerent, in international law, a state or organized community at war and subject to and protected by the laws of war. A state need not be politically independent to have the status of a belligerent. It must, however, be capable of maintaining itself by regular hostilities under a de facto government.
A colony in revolt against the parent state, or a revolutionary section or party waging war against the general government, has no standing in international law.
Without belligerent rights, the insurgent is not entitled to have legal blockades, nor may rebel vessels be received in foreign ports.
The insurgent acts of war are crimes, and certain maritime actions could be defined as piracy.
The recognition of an insurgent government as a belligerent by neutral powers is often based on insurgent control over territory and the strength of the insurgent regime. Recognition of a belligerent status is often followed by recognition of the independence of the insurgent government.
The grant of belligerent rights carries with it certain benefits. The principal advantages are the powerful moral support gained from international recognition, respect of the flag, and the right to negotiate foreign loans.
The status of belligerency also carries with it the obligation to observe the rules of civilized warfare set forth at the Geneva Convention, and it makes the belligerent liable for damage to neutral commerce and to citizens of neutral states. ================================================================
Report of The Joint Comittee on Reconstruction, June 20, 1866.
It must not be forgotten that the people of these States, without justification or excuse, rose in insurrection against the United States. They deliberately abolished their State governments so far as the same connected them politically with the Union. . . . They opened hostilities and levied war against the government. They continued this war for four years with the most determined and malignant spirit. . . . Whether legally and constititionally or not, they did, in fact, withdraw from the Union and made themselves subjects of another government of their own creation. And they only yielded when they were compelled by utter exhaustion to lay down their arms . . . expressing no regret, except that they had no longer the power to continue the desperate struggle.
It cannot, we think, be denied by any one, having tolerable acquaintance with public law, that the war thus waged was a civil war of the greatest magnitude. The people waging it were necessarily subject to all the rule which, by the law of nations, control a contest of that character, and to all the legitimate consequences following it. One of those consequences was that, within the limits prescribed by humanity, the conquered rebels were at the mercy of the conquerors. That a government thus outraged had a most perfect right to exact indemnity for the injuries done, and security against the recurrence of such outrages in the future, would seem too clear for dispute. .
(But one might ask about the Northern Union States: They voluntarily dissolved their State Governments to join the Federal UNION, one flag, one nation. (State = nation; depending on the context in which state, STATE or State is used.)
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The right to thus occupy an enemy's country and temporarily provide for its government has been recognized by previous action of the executive authority, and sanctioned by frequent decisions of this court. The local government being destroyed, the conqueror may set up its own authority, and make rules and regulations for the conduct of temporary government, and to that end may collect taxes and duties to support the military authority and carry on operations incident to the occupation (Macleod v. U.S, 229 U.S. 416 [1913]).
The right of one belligerent to occupy and govern the territory of the enemy while in its military possession is one of the incidents of war, and flows directly from the right to conquer. We therefore do not look to the Constitution or political institutions of the conqueror for authority to establish a government for the territory of the enemy in his possession, during its [182 U.S. 222, 231] military occupation, nor for the rules by which the powers of such government are regulated and limited. Such authority and such rules are derived directly from the laws of war, as established by the usage of the world and confirmed by the writings of publicists and decisions of courts,- in fine, from the law of nations.... The municipal laws of a conquered territory or the laws which regulate private rights, continue in force during military occupation, except so far as they are suspended or changed by the acts of the conqueror.... He, nevertheless, has all the powers of a de facto government, and can at his pleasure either change the existing laws or make new ones....
Look at it practically from another point of view. Certainly, before revenue laws can be made operative in a district or country it is essential that the situation be taken into account, for the purpose of establishing ports of entry, collection districts, and the necessary [182 U. S. 222, 242] machinery to enforce them. Of course, it is patent that such investigations cannot be made prior to acquisition. But, as the laws immediately extend, without action of Congress, as the result of acquisition, it must follows that they extend, although none of the means and instrumentalities for their successful enforcement can possibly be devised until the acquisition is completed. This must be, unless it be held that there is power in the government of the United States to enter a foreign country, examine its situation, and enact legislation for it before it has passed under the sovereignty of the United States. From the point of view of the United States, then, it seems to me that the doctrine of the immediate placing of the tariff laws outside the line of newly acquired territory, however extreme may be the opinion entertained of the doctrine of immediate incorporation, is inadmissible and in conflict with the Constitution (Dooley v. U.S., 182 U.S. 222 [1901]).
The jurisdiction of the conqueror is complete. He may change the form of government and the laws at his pleasure, and may exercise every attribute of sovereignty. The conquered territory becomes a part of the domain of the conqueror, subject to the right of the nation to which it belonged to recapture it if they can. By reason of this right to recapture, the title of the conqueror is not perfect until confirmed by treaty of peace. But this imperfection in his title is, practically speaking, important only in case of alienation made by the conqueror before treaty. If he sells, he sells subject to the right of recapture.
But although, for purposes of sale, the title of the conqueror is imperfect before cession, for purposes of government and jurisdiction his title is perfect before cession. As long as he retains possession he is sovereign; and not the less sovereign because his sovereignty may not endure for ever. [50 U.S. 603, 608] Grotius (ch. 6, book 3, 4), speaking of the right to things taken in war, says that land is reputed lost which is so secured by fortifications that without their being forced it cannot be repossessed by the first owner. And in ch. 8, book 3, treating of empire over the conquered, he shows that sovereignty may be acquired by conquest:
1st. That, by conquest and firm military occupation of a portion of an enemy's country, the sovereignty of the nation to which the conquered territory belongs is subverted, and the sovereignty of the conqueror is substituted in its place.
2d. That although this sovereignty, until cession by treaty, is subject to be ousted by the enemy, and therefore does not give an indefeasible title for purposes of alienation, yet while it exists it is supreme, and confers jurisdiction without limit over the conquered territory, and the right to allegiance in return for protection.
It cannot be denied that these principles, established by the common consent of the civilized world, must govern the title to conquests made by the United States. As one of the family of nations, they are bound by the law of nations, and the nature and effect of their acquisitions by conquest must be defined and regulated by that law.
The messages of the President to Congress during the war, and the instructions from the heads of departments, contain authoritative declarations as to the right of the United States to acquire foreign territory by conquest, and as to the effect of such conquest upon the sovereignty of the conquered territory, in accordance with the principles above stated. Thus, the President, in his message of December, 1846, says: -- "By the law of nations a conquered territory is subject to be governed by the conqueror during his military possession, and until there is either a treaty of peace or he shall voluntarily withdraw from it. The old civil government being necessarily superseded, it is the right and duty of the conqueror to secure his conquest, and to provide for the maintenance of civil order and the rights of the inhabitants. This right has been exercised and this duty performed by our military and naval commanders, by the establishment of temporary governments in some of the conquered provinces in Mexico, assimilating them as far as practicable to the free institutions of our own country.
A war, therefore, declared by Congress, can never be presumed to be waged for the purpose of conquest or the acquisition of territory; nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy's country. The United States, it is true, may extend its boundaries by conquest or treaty, and [50 U.S. 603, 615] may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the government for the expenses of the war. But this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war. His duty and his power are purely military. As commander-in-chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power (Fleming v. Page, 50 U.S. 603 [1850]).
The theory that a country remains foreign with respect to the tariff laws until Congress has acted by embracing it within the customs union presupposes that a country may be domestic for one purpose and foreign for another. It may undoubtedly become necessary for the adequate administration of a domestic territory to pass a special act providing the proper machinery and officers, as the President would have no authority, except under the war power, to administer it himself; but no act is necessary to make it domestic territory if once it has been ceded to the United States.... This theory also presupposes that territory may be held indefinitely by the United States; that it may be treated in every particular, except for tariff purposes, as domestic territory; that laws may be enacted and enforced by officers of the United States sent there for that purpose; that insurrections [183 U.S. 176, 179] may be suppressed, wars carried on, revenues collected, taxes imposed; in short, that everything may be done which a government can do within its own boundaries, and yet that the territory may still remain a foreign country. That this state of things may continue for years, for a century even, but that, until Congress enacts otherwise, it still remains a foreign country. To hold that this can be done as matter of law we deem to be pure judicial legislation. We find no warrant for it in the Constitution or in the powers conferred upon this court. It is true the non action of Congress may occasion a temporary inconvenience; but it does not follow that courts of justice are authorized to remedy it by inverting the ordinary meaning of words....
Footnotes: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That by the ratification of the treaty of peace with Spain it is not intended to incorporate the inhabitants of the Philippine islands into citizenship of the United States, nor is it intended to permanently annex said islands as an integral part of the territory of the United States; but it is the intention of the United States to establish on said islands a government suitable to the wants and conditions of the inhabitants of said island to prepare them for local áself-government, and in due time to make such disposition of said islands as will best promote the interests of the United States and the inhabitants of said islands [Cong. Rec., 55th Cong. 3d Sess. vol. 32, p. 1847] (The Diamond Rings, 183 U.S. 176 [1901]).