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

[Sanford Levinson]

I always hesitate to disagree with Marty about anything, but am not at
all sure that either the CIA or NSA is part of DOD.  After all, if they
were, they would presumably be subject to the authority of the Secretary
of Defense.  Yet for the past six years there has been extraordinarily
bitter turf warfare between the CIA (whose director, I believe, reports
directly to the President) and DOD (which explains why Rumsfeld created
his own mini-agency with DOD).  The head of NSA appears to be a general,
but I would be surprised if he is is subject to the Secretary of Defense
and/or reports to him.
 
This doesn't affect Marty's basically functionalist point.  I suppose
that the CinC has authority over civilians hired to work for the
military, at least if they are performing "traditionally military" jobs.
Query:  Could the President, as CinC, command civilian army cooks to
ignore a congressional mandate not to use any transfats?
 
sandy

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, April 18, 2006 10:51 AM
To: Sanford Levinson; CONLAWPROF at lists.ucla.edu
Subject: Re: The "commandner-in-chief" power and the non-military


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 <mailto:SLevinson at law.utexas.edu>  
	To: Sanford Levinson <mailto:SLevinson at law.utexas.edu>  ;
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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