While there is extensive literature on presidential war powers,1 to my knowledge there has never been a comprehensive listing of the relevant legal opinions provided by the executive branch. This bibliography of executive branch legal opinions on war powers since the beginning of the Korean War in 1950 is therefore intended as an aid to future scholarship. The opinions are listed in chronological order. Most have been published as public documents, although some were confidential at the time they were written. The once-confidential documents are available from presidential libraries, and I have provided the information necessary for the library archivists to retrieve them. This bibliography is limited to opinions that are related to the initiation of war, including the interpretation of the 1973 War Powers Resolution (WPR).2 Eight opinions that I believe were previously unknown or not easily accessible have been included as appendices to this Bibliography. I provide a commentary on the various items in the bibliography at the end. I welcome suggestions for additions to this list.
- Memorandum from the U.S. Dep’t of State to President Harry S. Truman (July 3, 1950), in H.R. Rep. No. 81-2495, pt. IV, at 61 (1950), quoted in 23 Dep’t St. Bull. 173 (1950).
- Staff of Joint Comm. Made Up of the Comm. on Foreign Relations and the Comm. on Armed Services of the Senate, 82d Cong., 1st Sess., Powers of the President To Send the Armed Forces Outside the United States (Comm. Print 1951).
- Memorandum from Dean Rusk, U.S. Sec’y of State, U.S. Dep’t of State, to President Lyndon Baines Johnson (June 29, 1964) (on file with LBJ Presidential Library, National Security File, Country File, Vietnam, 7B, 1965-1968, Legality Considerations), infra Appendix A.
- Memorandum from Leonard C. Meeker, Legal Adviser to the President, to President Lyndon Baines Johnson (Feb. 11, 1965) (on file with LBJ Presidential Library, National Security Files, Country File, Vietnam, 7B, 1965-1968, Legality Considerations), infra Appendix B.
- Memorandum from Leonard C. Meeker, Legal Adviser to the President, to President Lyndon Baines Johnson (Apr. 6, 1965) (on file with LBJ Presidential Library, National Security File, Country File, Vietnam, 7B, 1965-1968, Legality Considerations), infra Appendix C.
- Memorandum from Nicholas deB Katzenbach, U.S. Att’y Gen., U.S. Dep’t of Justice, to President Lyndon Baines Johnson (June 10, 1965), in 2 Foreign Relations of the United States, 1964-1968: Vietnam, January-June 1965, at 751-54 (David C. Humphrey, Ronald D. Landa, Louis J. Smith & Glenn W. La Fantasie eds., 1996).
- Memorandum from Leonard C. Meeker, Legal Adviser to the President, to President Lyndon Baines Johnson (June 11, 1965) (on file with LBJ Presidential Library, National Security File, Country File, Vietnam, 7B, 1965-1968, Legality Considerations), infra Appendix D.
- Memorandum from Leonard C. Meeker, Legal Advisor to the President, to the Senate Committee on Foreign Relations (Mar. 4, 1966), in 54 Dep’t State Bull. 474 (1966).
- Memorandum from William H. Rehnquist, U.S. Assistant Att’y Gen., Office of Legal Counsel, U.S. Dep’t of Justice, to Charles W. Colson, Special Counsel to the President (May 22, 1970) (on file with Nixon Presidential Library and Museum, White House Special Files, Staff Member and Office Files, Charles W. Colson, Box 42, Cambodia, Accordion Folder II, Cambodia Legal Briefs, 1 of 2), infra Appendix E.3
- Memorandum from Elliot Richardson, U.S. Att’y Gen., U.S. Dep’t of Justice, to Roy L. Ash, Dir., Office of Mgmt. & Budget (Oct. 18, 1973) (on file with Nixon Presidential Library and Museum, White House Central Files, Subject Files, FE (Federal Government) 4-1, 10/1/73-11/30/73, Box 6), infra Appendix F.
- Veto of the War Powers Resolution, Pub. Papers 893 (Oct. 24, 1973).
- A Test of Compliance Relative to the Danang Sealift, the Evacuation at Phnom Penh, the Evacuation of Saigon and the Mayaguez Incident: Hearings Before the Subcomm. on Int’l Sec. & Scientific Affairs of the H. Comm. on Int’l Relations, 94th Cong. 95 (1975) (statements of Monroe Leigh, Legal Adviser, U.S. Dep’t of State).
- Presidential Power To Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185 (1980).
- Overview of the War Powers Resolution, 8 Op. O.L.C. 271 (1984).
- Memorandum from C. Boyden Gray, White House Counsel, to President George H.W. Bush (Aug. 7, 1990) (on file with George Bush Presidential Library and Museum, John Sununu Files, OA/ID 29166-008, Persian Gulf War 1991, 6), infra Appendix G.
- Memorandum from C. Boyden Gray, White House Counsel, to Governor John H. Sununu, White House Chief of Staff (Dec. 6, 1990) (on file with George Bush Presidential Library and Museum, John Sununu Files, OA/ID CF 00472, Persian Gulf War 1991, 11), infra Appendix H.
- Authority To Use United States Military Forces in Somalia, 16 Op. O.L.C. 6 (1992).
- Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173 (1994).
- Proposed Deployment of United States Armed Forces into Bosnia, 19 Op. O.L.C. 327 (1995).
- Authorization for Continuing Hostilities in Kosovo, 24 Op. O.L.C. 327 (2000).
- John C. Yoo, The President’s Constitutional Authority To Conduct Military Operations Against Terrorists and Nations Supporting Them, U.S. Dep’t of Justice (Sept. 25, 2001), http://www.
- Jay S. Bybee, Authority of the President Under Domestic and International Law To Use Military Force Against Iraq, U.S. Dep’t of Justice (Oct. 23, 2002), http://www.justice.gov/olc/2002/iraq-opinion-final.pdf.
- Caroline D. Krass, Authority To Use Military Force in Libya, U.S. Dep’t of Justice (Apr. 1, 2011), http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf.
For the complete article, including appendices with eight previously unpublished memoranda, please see the links to Westlaw, LexisNexis, HeinOnline, and Amazon below.
- See, e.g., John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath (1993); Louis Fisher, Presidential War Power (2d ed., rev. 2004); Michael J. Glennon, Constitutional Diplomacy (1990); H. Jefferson Powell, The President’s Authority over Foreign Affairs (2002); Michael D. Ramsey, The Constitution’s Text in Foreign Affairs (2007); W. Taylor Reveley III, War Powers of the President and Congress: Who Holds the Arrows and Olive Branch? (1981); Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins (1976); The Constitution and the Conduct of American Foreign Policy (David Gray Adler & Larry N. George eds., 1996); Donald L. Westerfield, War Powers: The President, the Congress, and the Question of War (1996); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law (2d ed. 1989); John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (2005). Two other upcoming books on war powers worthy of note are Stephen M. Griffin, Long Wars and the Constitution (forthcoming 2013), and Mariah A. Zeisberg, War Powers: The Politics of Constitutional Authority (forthcoming 2013). ↩
- Pub. L. No. 93-148, 87 Stat. 555 (1973) (current version at 50 U.S.C. §§ 1541-1548 (2006)). ↩
- Special thanks to Nathan A. Forrester, Attorney-Adviser/Editor of the Office of Legal Counsel in the U.S. Department of Justice, for his assistance. ↩