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Description
In a series of confidential memos written after 9/11, later released to the public, the Justice Department wrote: "We conclude that the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign relations, to use military force abroad--especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States" (U.S. Justice Department 2001, 1). On January 19, 2006, the Justice Department defended the authority of the National Security Agency (NSA) to intercept international communications coming into and going out of the United States of persons allegedly linked to al Qaeda or related terrorist organizations. The department pointed to "the President's well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs" (U.S. Justice Department 2006a, 1). In cases challenging NSA eavesdropping, the government argued in court that the state secrets privilege "embodies central aspects of the Nation's responsibilities under Article II of the Constitution as Commander-in-Chief and as the Nation's organ for foreign affairs" (U.S. Justice Department 2006b, 4).
Referred to in this manner, the "sole organ" doctrine seems to support a plenary, exclusive, and inherent authority of the president in foreign relations and national security, an authority that overrides conflicting statutes and treaties. The theory appears to carry special weight because its author is John Marshall, a member of the House in 1800 and later chief justice of the Supreme Court. The theory is developed in an important foreign affairs case, United States v. Curtiss-Wright. (1) However, when Marshall's speech is read in context, he did not advocate an independent, inherent presidential power over external affairs. That scope of power did exist in foreign constitutions and precedents, such as in British law, but the Framers rejected the model of an executive empowered to exercise exclusive control over external relations (Fisher 2004, 1-16). (2)
Marshall's Speech
On March 7, 1800, in the House of Representatives, John Marshall called the president "the sole organ of the nation in its external relations, and its sole representative with foreign nations," (3) The context of his speech demonstrates that his intent was not to advocate inherent or exclusive executive power, much less the powers of a British monarch. As shown below, Marshall's objective was to defend the authority of President John Adams to carry out an extradition treaty. The president was not the sole organ in formulating the treaty. He was the sole organ in implementing it. Article II of the Constitution specifies that it is the president's duty to "take Care that the Laws be faithfully executed," and in Article VI, all treaties made "shall be the supreme Law of the Land."
During the debate, opponents of President Adams insisted that he should be impeached or censured for turning over to England someone charged with murder. Because the case was already pending in an American court, some lawmakers urged that action be taken against him for encroaching upon the judiciary and thus violating the doctrine of separation of powers. Yet Adams had operated under the extradition article (Article 27) of the Jay Treaty, which provided that the United States and Great Britain would deliver up to each other "all persons" charged with murder or forgery. (4) The debate began with a member of the House requesting that President Adams provide documents "relative to, the apprehension and delivering of Jonathan Robbins, under the twenty-seventh article" of the treaty (10 Annals of Cong. 511). Although critics of Adams claimed that Robbins was "a citizen of the United States" (ibid., Representative Edward Livingston), Secretary of State Timothy Pickering regarded Robbins as an assumed name for Thomas Nash, a native Irishman (ibid., 315). U.S. District Judge Thomas Bee, who was asked to turn the prisoner over to the British, considered the individual to be Thomas Nash. (5) A House resolution described President Adams's decision to turn the accused over to the British as "a dangerous interference of the Executive with Judicial decisions" (ibid., 533). Some members questioned whether the House had authority "to censure or to approbate the conduct of the Executive" (ibid., 551, statement by Representative William Craik). Others saw the debate heading in the direction of impeachment (ibid., statement by Representative Robert Harper).
Five months before the House debate, Marshall wrote an article for the Virginia Federalist (Richmond) on September 7, 1799, setting forth his analysis of the dispute over what he called "the case of Robbins" (Cullen 1984, 23). He explained that on matters of extradition, nationals communicate with each other "through the channel of their governments," and the "natural, and obvious and the proper mode is an application on the part of the government (requiring the fugitive) to the executive of the nation to which he has fled, to secure and cause him to be delivered up" (ibid., 25). The concept of sole organ, then, included this capacity of the president to act as the channel for communicating with other nations. In carrying out Article 27 of the Jay Treaty, Marshall said that President Adams "[u]pon the whole ... appears to have done no more than his duty" (ibid., 28). By implementing this treaty provision, Adams had "execute[d] one of the supreme laws of the land, which he was bound to observe and have carried into effect" (ibid.). Nothing in this analysis suggested an inherent or extraconstitutional role for the president. Once the president and the Senate had agreed on a treaty, it was the president's duty to see that the treaty was faithfully executed, as with any other law.
Having honed his major arguments, Marshall was fully prepared to respond to the House resolutions of possible censure or impeachment. After listening to preceding speakers, he took the floor to say that there were no grounds to rebuke the president. In matters such as carrying out an extradition provision in a treaty, "a case like that of Thomas Nash is a case for Executive and not Judicial decision" (10 Annals of Cong. 611). Here is the sole-organ comment in full:
The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is... |
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