The scope of power that the executive branch has to act independently of the other government branches in the national security arena is one of the most difficult questions to answer in constitutional law. Congress has passed a number of statutes empowering the President to take actions necessary to protect our national security, but on relatively few occasions has Congress authorized the President to use force through declarations of war. As Counsel to the President, my job was to work with Attorney General John Ashcroft and other senior lawyers in the Bush Administration to advise the President on the limits of his power to protect America. When I became Attorney General in 2005, I assumed the primary role for that responsibility. In this article, I will explain how I approached this question then from an insider's perspective, based on a straightforward framework of necessity balanced against accountability.
38 HARVARD J. LAW & PUB. POLICY, No. 2 (Spring 2015)