The "commandner-in-chief" power and the non-military

[Marty Lederman]

If I recall correctly, both the CIA and the NSA are part of the Department of Defense, and therefore could reasonably be viewed as covered by the Commander-in-Chief Clause, in the same way that the Air Force and Marines are covered despite not being named in the constitutional text.  More to the point, the functions at issue in the recent debates -- interrogation and surveillance of the enemy -- are those that ordinarily and historically have been performed by the Army and Navy, and the fact that they are now performed in part by non-uniformed personnel shouldn't make much of a difference constitutionally.  This is not, of course, to say that the Commander-in-Chief may ignore statutory limits; but I do think it's plausible to view the President's command of the NSA and CIA here as being encompassed by the CIC Clause.

Moreover, the DOJ White Paper actually makes another argument that goes beyond the CIC Clause -- namely, that FISA prevents the President from fulfilling a constitutional duty to protect the nation, a duty that presumably derives from the Oath Clause and/or the structure of the Constitution, more than from the CIC Clause.  I don't think this is a very good argument; but I just thought I'd flag it here because it's increasingly the thrust of DOJ's justifications for ignoring statutes, and because it is not limited to the CIC Clause (and thus not confined to the Army, Navy and other Defense establishments).  
  ----- Original Message ----- 
  From: Sanford Levinson 
  To: Sanford Levinson ; CONLAWPROF at lists.ucla.edu 
  Sent: Tuesday, April 18, 2006 10:57 AM
  Subject: RE: The "commandner-in-chief" power and the non-military


  In preparing for a seminar yesterday (on "emergency powers") and reading the DOJ's January memorandum defending the NSA surveillance on "commander-in-chief" grounds (among other arguments), a very naive (but genuine) question occurred to me:  How is it that the CinC power extends to non-military agencies.  I can readily understand the argument that Congress can't interfere with a range of presidential decisions involving deployment of the military (but see Article I, Sec. 8 with regard to Congress's power to make "rules and regulations"), but why, exactly, do the CIA and NSA come under the CinC power?  If they are brought under it, then is there ANY executive agency that the President can't "comandeer' so long as there is some minimally rational connection between the agency and prosecution of a military campaign?    I'm not an originalist, but I am curious whether anyone in 1787 assumed that the "military" would include civilians over whom the President would exercise CinC authority?  

  sandy


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