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8 Questions Senators Must Ask William Barr on Executive Power

The AG nominee once told a president he did not need congressional authority to go to war. What does he think now?

William Barr, President Donald Trump’s nominee to succeed Acting Attorney General Michael Whitaker, previously served in two other legal positions under President George H.W. Bush: assistant attorney general for the Office of Legal Counsel and attorney general. In those capacities, Barr zealously clamored for the counter-constitutional doctrine that the president commands limitless power to initiate war or otherwise employ the armed forces offensively.  

In an oral history interview with the University of Virginia’s Miller Center in April 2001, Barr related his advice to President Bush that he “had constitutional authority to launch an attack against Iraqis.” The president “did not require any authorization from Congress.” Moreover, even if Congress passed a resolution opposing the president’s use of force, “it’s irrelevant. I would say you could still do it.”    

Barr’s intellectually dishonest viewpoint contradicted the understanding of every participant in the drafting, debate, and ratification of the Constitution. They unanimously agreed that the Declare War Clause made Congress alone responsible for taking the nation to a state of war. George Washington, James Madison, Alexander Hamilton, Thomas Jefferson, Supreme Court Chief Justice John Marshall, and Associate Justices James Wilson and William Paterson famously agreed to this without a syllable of dissent.

Barr’s opinions bespeak an alarming penchant for extra-constitutional executive power at a time when our country is perpetually “at war” in an increasing number of places across the globe. It comes as Congress is finally finding its backbone and pushing against Washington’s unauthorized involvement in the war in Yemen.

Indeed, Barr would crown the president with more unchecked authority than King George III had during his tyranny over American colonists, which provoked the American Revolution. He should not be confirmed by the Senate unless he recants his extra-constitutional opinions.

As the Senate Judiciary Committee reconvenes Wednesday for confirmation hearings, members should insist that Barr answer the following questions:

  1. Does the president have constitutional authority to play prosecutor, judge, jury, and executioner to kill American citizens not engaged in hostilities whom the president secretly deems imminent national security threats? Was President Barack Obama’s killing of Anwar al-Awlaki’s teenage sona United States citizen, constitutional?
  2. Was President Harry Truman’s Korean War, launched without congressional authorization in 1950, constitutional? Likewise, was Obama’s war against Libya to overthrow the Gaddafi regime, or Trump’s ongoing war in Syria, constitutional?
  3. Does Congress have constitutional authority under the War Powers Resolution to compel the president to cease hostilities against a foreign adversary by a concurrent resolution that does not require the president’s signature?
  4. Can a treaty obligate the United States to commence war on behalf of an ally notwithstanding the Declare War Clause? Does either NATO or the United Nations Charter authorize the president to initiate war without a congressional declaration?
  5. Was Obama’s Joint Comprehensive Plan of Action to restrain Iran’s nuclear ambitions a treaty requiring Senate ratification?
  6. Does the Fourth Amendment permit the president to spy on American citizens without warrants or probable cause in order to collect foreign intelligence? What are the constitutional underpinnings, if any, for Executive Order 12333, which authorizes warrantless surveillance of United States persons to collect foreign intelligence?
  7. Is the president entitled to withhold documents from Congress, or to resist testimony before congressional committees either in executive session or in a public forum based on executive privilege, state secrets, or otherwise? What is the constitutional foundation, if any, for the president’s invocation of the state secrets doctrine to frustrate judicial redress for unconstitutional government wrongdoing—for example, murder or kidnapping?
  8. Is Congress entitled to know what standards the president employs to justify cyberattacks against foreign nations or non-state actors that could risk a kinetic response?

The Constitution’s lodestar is liberty. War and unchecked executive power are its greatest enemies. These questions are thus critical to the Senate’s evaluation of Barr’s qualifications to serve as attorney general.

Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.



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