Justice Department lawyers have secretly worked under presidents of both parties to narrowly interpret the reach of a law passed at the end of the Vietnam War meant to reassert Congress’s constitutional role in deciding whether to go to war, newly disclosed memos show.
The Office of Legal Counsel drafted the memos in the decades after Congress enacted that law, the War Powers Resolution of 1973. The writings shaped White House interpretations of its constraints in ways not disclosed to Congress or the public, and their release sheds light on the inner workings of executive branch lawyers seeking to protect or expand presidential power.
Among the writings: a memo by Antonin Scalia, the future Supreme Court justice, blessing President Gerald R. Ford’s desire to send troops back to Vietnam in 1975 for the evacuation of Saigon, and another written in 1993 scrutinizing which parts of the law President Bill Clinton could disregard as unconstitutional, in what appears to be the office’s seminal work on the law.
The tranche also covers various post-World War II issues, like the Harry S. Truman administration bringing Nazi scientists to the United States; ending the classification of Japanese people as “alien enemies”; and weighing whether to send peacekeeping troops to the Middle East as part of the 1948 establishment of Israel.
The Knight First Amendment Institute at Columbia University obtained the memos through a Freedom of Information Act lawsuit and provided them to The New York Times. They open a window into how executive branch lawyers can expand White House power, allowing presidents to feel free to act in ways Congress sought to constrain.
“The collection of previously unreleased war powers memos from the Office of Legal Counsel offers new insights into important historical moments, but it also has significance today,” said Oona Hathaway, a Yale Law School professor who gained early access to the documents.
“Because war powers issues almost never get litigated on the merits in court, the O.L.C.’s legal opinion is often the only one that matters,” Ms. Hathaway added. “Moreover, the office treats its prior memos as precedential — so understanding war powers law requires understanding these prior memos. Yet, until now, no one else has been able to see them.”
She and other legal specialists said the memos about the War Powers Resolution were particularly significant.
Congress passed that law — overriding the veto of President Richard M. Nixon — a quarter-century into the Cold War, a period giving rise to what is sometimes called “the imperial presidency,” during which the authority of the legislative branch to control when to go to war had seriously eroded. Among other things, the resolution states that presidents may only deploy forces into hostilities to repel an attack on the United States or with Congress’s prior permission.