Crisis and Command: A History of Executive Power from George Washington to George W. Bush

by John Yoo

  Once in office, however, Eisenhower pulled back from the campaign rhetoric and kept the fundamental goal of containment in place, but with different means. The United States would remain the protector of the free nations in Europe and Asia, but it would leave behind the universal opposition to any and all Communist offensives. Eisenhower and his advisors were concerned that NSC-68 placed too much strain on the economy, which would ultimately result in reduced standards of living, inflation, and excessive government regulation. The United States would not attempt to match Soviet conventional force advantages, but instead would play to its strengths -- nuclear weapons, naval and air superiority, covert action, economic and political alliances, and negotiations -- a strategy that came to be known as the "New Look."

  Reliance on nuclear weapons rather than conventional ground troops allowed the Eisenhower administration to reduce defense spending from roughly 12-13 percent of GNP at the close of the Korean War to 9 percent when he left office. Approved by Eisenhower in October 1953 in the secret NSC 162/2, the New Look required that in a war with the Soviets or Chinese, "the United States will consider nuclear weapons to be as available for use as other munitions." Or, as Ike said privately to congressional leaders in late 1954, the plan was "to blow hell out of them in a hurry if they start anything."23

  Eisenhower's brand of containment required the United States to take the initiative to keep the Soviets off balance. If the Truman administration's symmetric strategy emphasized a certain American response to every Soviet action, the key to Ike's asymmetric strategy was that the United States would act in ways and in places that the Soviets could not predict. Eisenhower emphasized covert action by the CIA, which had been created by the 1947 National Security Act, but whose operations the President directed with little congressional oversight. Under Truman, the CIA had focused primarily on intelligence collection; Eisenhower expanded its central mission to include covert action.

  As the United States and the Soviet Union reached equilibrium in Western Europe and East Asia, superpower competition moved to the Third World, where covert action offered a cheap option to prevent the spread of communism. In 1953, the CIA overthrew the regime of Iranian prime minister Mohammed Mossadegh, who had nationalized Western-owned oil companies, and restored the Shah to the throne at minimal cost. In 1954, the CIA overthrew the socialist government of Jacobo Arbenz Guzman in Guatemala, but other attempts in Indonesia in 1958 and Cuba at the end of Ike's second term failed. Congress played no role in authorizing any of these operations and would not generally know of them until congressional investigations after Watergate.

  An important element of the New Look was to expand the participants in the struggle against the Soviet Union. In addition to Truman's NATO and ANZUS (Australia, the U.S., and New Zealand) treaties, the Eisenhower administration reached security agreements in Southeast Asia (SEATO), Turkey, Iran, and Pakistan (CENTO), and bilateral agreements with South Korea and Taiwan. Dulles hoped to encircle the Soviets with a ring of American allies; Eisenhower thought that alliances could complement American military strength. Those nations could provide ground troops for any communist expansion in their regions, while the United States could provide naval, air, and strategic forces. Congress played little role in the initiation and negotiation of these security arrangements, but they could not become treaties without the Senate's advice and consent.

  In those moments when American involvement called for military action, Eisenhower sometimes turned to Congress and sometimes did not. In two cases, Ike asked for congressional support for the use of force overseas. The first arose in August 1954, when Communist China shelled the tiny islands of Quemoy and Matsu, which were occupied by Chiang Kai-shek's nationalist army. Both Chiang's and Eisenhower's military advisors worried that the shelling was a prelude to an attack on Taiwan itself. In one NSC meeting, Eisenhower stated his belief that an offensive attack on China would require congressional authorization "since it would be a war. If congressional authorization were not obtained there would be logical grounds for impeachment." But when Eisenhower decided to seek support from Congress for the use of military force, he publicly left vague whether the Constitution required any legislation.

  "Authority for some of the actions which might be required would be inherent in the Commander-in-Chief," Eisenhower told Congress in January 1955. "Until Congress can act, I would not hesitate, so far as my Constitutional powers extend, to take whatever emergency action might be forced upon us in order to protect the rights and security of the United States." So far, this was a traditional claim for inherent executive authority to use force abroad. Eisenhower had to make a nod toward the congressional wing of his party, which had criticized Truman for exactly the same claim. "However," he said, "a suitable Congressional resolution would clearly and publicly establish the authority of the President as Commander-in-Chief to employ the armed forces of this nation promptly and effectively." In describing the resolution, Eisenhower focused on its political effects, not its constitutional ones. "It would make clear the unified and serious intentions of our Government, our Congress, and our people."24 Eisenhower wanted to consult with Congress, but the primary purpose was political, rather than legal -- he wanted a show of unity against China and to avoid claims that he had shut Congress out.25Congress passed the resolution overwhelmingly four days later.

  The administration came close to using nuclear weapons to end the crisis. In March 1955, Eisenhower sent Dulles to publicly threaten the use of nuclear weapons in case of a war in the Taiwan straits. On March 16, Eisenhower used a press conference to confirm publicly that the United States would use tactical nuclear weapons in the event of war. "Yes, of course they would be used," he said. "I see no reason why they shouldn't be used just exactly as you would use a bullet or anything else." The Chairman of the Joint Chiefs of Staff and Dulles both recommended the bombing of the Chinese mainland with both conventional and nuclear weapons. In April, Chinese leaders publicly announced their desire for a negotiated settlement, and by August talks had begun.26 While the display of national unity may have had some effect, it is likely that the administration's threat of a nuclear attack made the deeper impression on the minds of China's leaders.

  Eisenhower went to Congress again two years later, this time during a crisis in the Middle East. After Egyptian leader Gamal Nasser's nationalization of the Suez Canal, Britain, France, and Israel launched a plan to seize the Sinai Peninsula and the Canal in October 1956. Eisenhower immediately opposed their attack as a foolish effort to reestablish colonialism in the Middle East. The United States introduced a UN resolution calling for a cease-fire and imposed an oil embargo on Britain and France.

  Khrushchev threatened Russian intervention, and Eisenhower had American forces mobilized in response; he wanted the British and French out, but not because of Russian arms. He asked Congress in January 1957 for a resolution of support for possible military force in the region. Again, Eisenhower sought the resolution more for political than constitutional reasons. "I deem it necessary to seek the cooperation of the Congress. Only with that cooperation can we give the reassurance needed to deter aggression," he told a joint session.

  In a private session with congressional leaders, Eisenhower would only go so far as to say that the Constitution wanted the branches to work together, but he did not specify how. "Greater effect could be had from a consensus of Executive and Legislative opinion," he told them. "The Constitution assumes that our two branches of government should get along together."27 Congress obliged and passed the authorization.28 The following year, after Egypt and Syria joined to form the United Arab Republic, and pro-Nasser forces overthrew the government of Iraq, the President dispatched 14,000 troops to protect the pro-Western government of Lebanon.

  Eisenhower spent his last years in office seeking an accommodation with the Soviet Union. Despite his rhetorical call for the liberation of the "captive nations," Ike did little when the Soviets brutally put down Hungary's 1956 revolution. He acted on hi
s own to ascertain the Soviet Union's real strength while at the same time seeking negotiations for a settlement of outstanding issues. Eisenhower secretly ordered U-2 spy flights over the Soviet Union and approved the planning for what would become the failed Bay of Pigs operation against Castro. Secret flyovers discovered that despite Democrat claims of a "missile gap," the United States held an overwhelming superiority over the Soviet Union in strategic nuclear weapons. But the May 1960 downing of Gary Powers's U-2 sank the Paris summit meeting with Khrushchev, and the Bay of Pigs operation would fail miserably early in Kennedy's Presidency.

  Despite these setbacks, Eisenhower's management of foreign policy and national security has won him high marks. In the years immediately after he left office, scholars ranked him as a below-average President, struck as they were by the contrast between Kennedy's image of energy and youth and Eisenhower's bumbling public performances and moderate policies. History has since revised its opinion. With the opening of his papers, the image of Eisenhower as a detached, grandfatherly chairman of the board has given way to a "hidden-hand" Presidency in the words of Fred Greenstein.29Eisenhower was a shrewd politician who was fully in command of his administration and made almost all of the important policy decisions himself. Strategists credit Ike with pursuing the most sensible version of containment, one that matched the nation's ends with limited means. He achieved deterrence without actually going to war.

  The exercise of presidential power did not become necessary only in crises, nor did it exert an inevitable pressure toward conflict. Eisenhower rejected the traditional isolationism of the Republican Party, but he also overruled the advice of his military and civilian advisers to seek a nuclear confrontation with the Soviet Union and China. Only the executive branch could successfully develop and pursue a coherent strategic policy that avoided sharp swings between isolationism and unnecessary war. Eisenhower presided over a stabilization of the Cold War that contained the Soviet Union, deterred incursions against core allies in Europe and Asia, and limited the defense burden on the economy.

  Even Cold War Presidents who do not rank highly today found their greatest moments during times that demanded the exercise of constitutional power. While John F. Kennedy's glamorous public image and premature death have won him a popularity that persists to this day, his historical reputation has steadily declined. Kennedy oversaw the Bay of Pigs fiasco, first sent American troops to Vietnam, risked nuclear war over Berlin and Cuba, engaged the United States in counterinsurgency wars, and failed in his efforts to reach an understanding with the Soviets. Kennedy pursued a strategy of "flexible response" that paralleled NSC-68's call for almost unlimited resources to pursue a more activist foreign policy.330 But JFK's finest hour did come in foreign affairs. He ordered a naval blockade of Cuba to prevent Soviet construction of intermediate-range nuclear ballistic missiles, which had the ability to reach most of the continental United States. Although styled a "quarantine," the blockade was an act of war under international law -- it required the use of naval force to block shipping from reaching Cuban ports. Kennedy could not justify the quarantine under any theory of self-defense or authorization by the United Nations. The Soviets and Cubans had not attacked the United States, and the nuclear missiles themselves were incomplete. Even if the missiles had been finished, a Soviet attack could not have been said to be imminent -- the traditional test under international law for the pre-emptive use of force.331Rather, Kennedy used force and the threat of a wider conflict to prevent a dramatic shift in the balance of power toward the Soviet Union, which at the time had only a limited force of intercontinental ballistic missiles.

  As we now know, American forces came perilously close to a military conflict with Soviet and Cuban units, which could have escalated into a nuclear exchange -- the President had earlier served notice that any missile launch from Cuba would trigger a full retaliatory response on the Soviet Union. Kennedy never sought any formal authorization from Congress for his actions, though he did meet with congressional leaders to inform them. Several of the leaders recommended that Kennedy invade Cuba, advice he did not take. Rather, JFK carefully maintained the blockade until the Soviets agreed to dismantle the missiles, in exchange for U.S. removal of medium-range nuclear missiles from Turkey and a pledge not to invade Cuba.332 Critics of presidential power believe that the Constitution must be read to require congressional approval of the use of force. They believe that a more difficult process will "'clog' the road to combat," in John Hart Ely's words, and so keep the United States out of war.333 World War II shows that this go-slow approach can have a steep cost -- congressional delay can keep the United States out of wars that are in the national interest. Madison's acceptance of the War of 1812 demonstrates the opposite as well: Congress can force the nation into senseless wars. American involvement in Vietnam reveals a third dimension. Congressional participation is no guarantee against poor judgment, ineffective tactics, or just bad luck.

  President Lyndon Johnson sought and received the approval of Congress for the Vietnam War in the Tonkin Gulf Resolution, passed in August 1964 after an alleged attack by North Vietnamese gunboats on U.S. Navy destroyers in international waters. Controversy continues over whether North Vietnamese forces truly attacked the warships and whether the vessels invited the attacks by supporting covert operations in northern territory. LBJ ordered retaliatory strikes and asked Congress for support, but informed the public only that the North's attacks represented deliberate and unprovoked aggression. In a resolution enacted unanimously in the House and by 88-2 in the Senate, Congress declared that it "approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression." The United States was prepared, "as the President determines, to take all necessary steps, including the use of armed force," to defend any SEATO nation "requesting assistance in defense of its freedom."34

  Presidents received consistent support from Congress throughout most of the Vietnam War. Congress approved LBJ's 1965 decision to increase dramatically American military involvement with full financial support. The escalation began in the spring of 1965 with Operation Rolling Thunder, which launched a three-year bombing campaign of North Vietnamese targets. Ground deployments began with 4,000 marines in March but quickly reached 200,000 by the end of the year, and 500,000 within two years. Congress overwhelmingly approved the appropriations for the 1965 escalation and the expansion of the draft. Congressional and popular opinion did not fully turn against Johnson and the war until the Tet Offensive in January 1968, which turned a military defeat into a media victory for the North. Even so, Congress continued to provide the men and material for Nixon's new strategy of "Vietnamization" to take hold.35

  Richard Nixon ranks among the below-average Presidents in American history, stuck between Herbert Hoover and Zachary Taylor. To the extent Nixon's Presidency benefited the United States, it came in foreign affairs. His administration introduced detente toward the Soviet Union and the historic opening to China, which created new fissures in the communist bloc. Henry Kissinger's surprise trip to China was carried out in secrecy, even from the State Department, and Nixon extricated the United States from Vietnam, albeit at a high cost (one-third of all American casualties in Vietnam occurred under his Presidency).

  To force the North Vietnamese to the bargaining table, Nixon secretly ordered U.S. ground and air intervention into neutral Cambodia, which the North Vietnamese had been using to transport reinforcements into the South. When announced to the public, protests erupted domestically, but efforts in Congress to cut off funds failed. In December 1972, Nixon ordered bombings of Hanoi and other North Vietnamese cities to press for a peace agreement, which was reached in Paris the following month. The Justice Department, relying on a speech by then-Assistant Attorney General William Rehnquist, defended Nixon's Cambodian bombings and his other Vietnam War decisions as an exercise of the Commander-in-Chief power.36
On a different front, the United States threatened the use of force in the Middle East during the 1973 Yom Kippur War in order to ensure the survival of Israel and prevent the conflict from escalating beyond the region.

  Watergate weakened the Presidency to the point where Congress changed the balance of powers in its favor. In the 1973 War Powers Resolution (WPR), Congress authorized the President to introduce the American military into hostilities, whether actual or imminent, only with a declaration of war, specific statutory authorization, or an attack on the United States or its forces. The WPR requires that the President "in every possible instant shall consult with Congress" before sending the armed forces into hostilities (or imminent hostilities) and that he must report to Congress within 48 hours afterward. It requires the President to terminate the intervention 60 days after the report unless Congress authorizes the use of force. Nixon vetoed the act on the ground that it violated the President's war authorities, but two-thirds of Congress overrode him. Every President since has refused to acknowledge the WPR's constitutionality, and several have undertaken action in violation of its terms. In these conflicts, Congress chose to allow the President to take the initiative in war-making but also to suffer the political consequences alone.37

  Like Eisenhower, President Reagan received little respect from scholars and pundits, who had always dismissed him as little more than an actor, and when he left office, Reagan was considered a below-average President. The passage of time has given scholars a newfound appreciation, and he now ranks along with Truman and Eisenhower, among the top Presidents in our history. Reagan came to office when the United States seemed to be in retreat on the world stage, and left it with the Soviet Union on its way to collapse under the weight of its economic inefficiencies and military spending. Critics have suggested that Reagan turned out to be lucky, as he had been all his life, and just happened to be in the Oval Office when internal problems caused the Soviet Union to crumble. Yet, the United States was back on its heels when he took office in 1981. Watergate had led to congressional restrictions on executive power in foreign affairs, the Soviets had achieved superiority in nuclear as well as conventional arms, and the aftermath of Vietnam and the Iranian hostage crisis had given rise to the idea that America was an over-muscled Gulliver whose great military strength was of little use.38