September 25, 2001: Justice Department Lawyer Asserts There Is No Limit to President’s Authority to Wage War

In a secret 15-page memo to Deputy White House Counsel Timothy Flanigan, Justice Department lawyer John Yoo, a deputy in the Office of Legal Counsel, reasons that it is “beyond question that the president has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks” of 9/11. Those actions can be extensive. “The president may deploy military force preemptively against terrorist organizations or the states that harbor or support them,” Yoo writes, “whether or not they can be linked to the specific terrorist incidents of Sept. 11.… Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon.” The memo is solicited and overseen by White House lawyers.
Power Derives from Constitution, Congressional Authorization for War – This power of the president, Yoo states, rests both on the US Congress’ Joint Resolution of September 14 (see September 14-18, 2001) and on the War Powers Resolution of 1973. “Neither statute, however, can place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the president alone to make.” (Most experts believe that the Constitution strictly limits the president’s power to declare and conduct war—see 1787).
Power More Extensive than Congress Authorized – Yoo argues further that the September 14 resolution does not represent the limits to the president’s authority. “We think it beyond question” that Congress cannot “place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the president alone to make.” Congress’s “Joint Resolution is somewhat narrower than the president’s constitutional authority,” Yoo writes, as it “does not reach other terrorist individuals, groups, or states which cannot be determined to have links to the September 11 attacks.” The president’s broad power can be used against selected individuals suspected of posing a danger to the US, even though it may be “difficult to establish, by the standards of criminal law or even lower legal standards, that particular individuals or groups have been or may be implicated in attacks on the United States.” Yoo concludes: “[W]e do not think that the difficulty or impossibility of establishing proof to a criminal law standard (or of making evidence public) bars the president from taking such military measures as, in his best judgment, he thinks necessary or appropriate to defend the United States from terrorist attacks. In the exercise of his plenary power to use military force, the president’s decisions are for him alone and are unreviewable.”
‘Unenumerated’ Presidential Powers – Yoo even asserts that the president has more power than his memo claims: “[T]he president’s powers include inherent executive powers that are unenumerated in the Constitution,” including but not limited to the power to take the country to war without Congressional input. [US Department of Justice, 9/25/2001; Savage, 2007, pp. 121-122]
Memo Remains Secret for Three Years – The contents of this memo are not disclosed until mid-December 2004. [Newsweek, 12/18/2004; Newsweek, 12/27/2004]