Constitutional Law

Q: President Bush asked for, and received, congressional approval to to send troops into Afghanistan in response to the September 11, 2001, terrorist attacks on New York City and Washington, D.C.America.The troops conducted their military operation, but some stayed behind on a peacekeeping mission. More specifically, the troops who stayed were there to assist the U.N. forces that would eventually take over the operation. Their mission, as Bush told the American public, "is now for peace-keeping purposes only." Let us assume that the peacekeeping mission was a disaster. By the end of 2002, fighting again had erupted in the region. The evening news was full of images of dead and injured American soldiers. Public opinion shifted strongly against U.S. involvement in the region.Bush, however, felt that the interests of the United States were at stake in that region of the world, and he decided to send in more troops specifically equipped for heavy combat. They began launching attacks into the mountains on the Afghanistan-Pakistan borderboth from the air and on the ground. Congress was not consulted about Bush's decision to escalate U.S. involvement in the region, leading many members of Congress to come out vocally against the President.By August 2003, members of Congress and the public began to question Bush's decision. All in all, the American operation in Afghanistan was not going well: thousands of soldiers had been killed, and; many more had been seriously wounded. Finally, in late August Bush pulled out the U.S. troops; the entire venture had been a major fiasco. Not only had many Americans died, but also problems in the region remained unresolved.Congress did not plan to let Bush off the hook easily. In September of 2003, a special house committee was created to determine whether he had violated the War Powers Act. Passed in 1973 by a Congress fed up with its impotence during the Vietnam War, the War Powers Act contains the following key provisions: 1. It sets a sixty-day limit on any Presidential commitment of U.S troops abroad without specific congressional authorization. The commitment may be extended for another thirty days if necessary for the safe withdrawal of troops. 2. It allows for the termination of Unauthorized commitments prior to the sixty-day deadline through congressional adoption of a concurrent resolution, a measure that does not require presidential signature or approval. 3. It requires the president to consult with Congress in every possible instance before introducing United. States armed forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated.During the course of the House committee's hearings, it became clear that many more individuals within the executive branch (besides Bush) were involved (e.g., the Secretary of Defense, the Director of the CIA). At this point, the committee asked the president to turn over certain documents, particularly those describing the administration's strategic decision-making processes and defense plans in the Afghanistan conflict. President Bush refused to do so, and he sent his Attorney General, (John Ashcroft,) to Congress to explain his reasons.Ashcroft offered two explanations. First, in the administration's eyes, the entire War Powers Act violated the separation of powers doctrine and interfered to an impermissible (and, thus, unconstitutional) extent with the President's responsibilities as Commander -in -Chief and as the "sole organ of foreign affairs." Accordingly, the administration argued that it did not need to comply with a congressional investigation into on whether or not Bush had violated the Act. Second, the administration asserted that, even if the Act was constitutional, the President could, under a claim of executive privilege, refuse to turn over sensitive documents.Members of Congress immediately took on Bush and Ashcroft in a U.S. District Court. They argued that the War Powers Act was perfectly compatible with existing U.S. Supreme Court doctrine. They also asserted that the President was using "executive privilege" as an excuse to avoid cooperating on with the committee and that he could not constitutionally do so.Suppose you were the district court judge in this case. Using relevant Supreme Court doctrine, how would you rule on both aspects of this case, the constitutionality of the War Powers Act and the claim of executive privilege? Explain and justify your responses. Now consider this question: Would your responses be different if the United States still had troops in Bosnia at the time this suit was pending? Why or why not?

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