Who Decides When America Goes to War? A Conversation with Professor John Q. Barrett

Amicus Curiae with host Daniel K. Wigg, a podcast series from the New York County Lawyers Association. Join us monthly for candid, useful, inspirational, and entertaining conversations with leaders of the bench and bar and those who serve the legal profession.

Daniel K. Wigg | 00:22.413

So I realize, as we are recording this, the situation in Iran… It might be winding down. I haven’t heard the latest news yet. But putting that aside, if you look at that situation, fire was exchanged, bombs were dropped, people unfortunately lost their lives. Was that a war?

Professor John Q. Barrett | 00:41.563

I think it was a war. I think war is a common-sense concept. We know it when we see it, and we’ve got a system in our Constitution to declare war, and we didn’t follow it in this case.

Daniel K. Wigg | 00:53.240

So we’ll get into that more. That was a nice, succinct answer, by the way, Professor. So, I’d like to welcome our listeners to Amicus Curie, a nightly series of casual, comfortable, and friendly conversations with leaders of the bench and bar and those who serve the legal profession. I’m thrilled today to welcome Professor John Q. Barrett from St. John’s University.

At St. John’s, he is the Benjamin Cardozo Professor of Law, where he teaches first-year constitutional law, criminal procedure, and legal history courses. He is also the Elizabeth S. Lennar fellow at the Robert H. Jackson Center in Jamestown, New York, and he is perhaps the premier biographer of U.S. Supreme Court Justice and Nuremberg prosecutor Robert H. Jackson. He is a graduate of Georgetown University and Harvard Law School.

Prior to joining St. John’s, Professor Barrett was counselor to Inspector General Michael R. Bromwich, U.S. Department of Justice from 1994 through 1995. From 1988 through 1993, he was associate counsel, in the office of Independent Counsel Lawrence E. Walsh during the Iran contra matter from 1986 through 1988 he was a law clerk to Judge A. Leon Hingenbotham Jr. of the United States Court of Appeals for the Third Circuit.

Professor John Barrett, welcome, thank you so much for joining us today.

Professor John Q. Barrett | 01:52:824

Thank you for having me.

Daniel K. Wigg | 01:59:745

And a quick reminder to our listeners, Professor Barrett joins us to discuss his personal views, and not necessarily those of NYCLA, its officers, its members, its directors, or even me, for that matter.

So, Professor, let’s go, as you mentioned, to the Constitution. There was a sportscaster in New York many years ago. He said, let’s go to the videotapes. Let’s go to the Constitution. Article 1, section 8, gives the power to declare war to Congress. Article 2, section 2, is where the president has his or her one day, perhaps, commander-in-chief powers.

How do these interact and how do these reconcile?

Professor John Q. Barrett | 02:42.757

Well, we have to, I think, go back to the 18th century and think geographically about this country and its origins. We achieved independence. We are isolated and protected by the vast Atlantic Ocean from the European empires. But we need to protect ourselves, worry about a resumption of a British threat, a Spanish threat, a French threat. And we are a legislative government.

So the structure of the Constitution, and this is really our second Constitution, the articles of Confederation were replaced as of 1788, with this structure, was a legislative, policymaking initiative system of government to strike that balance. How much expenditure, how much provisioning, how much military buildup should this country, this isolated, new, weak, but hoping to develop country, commit itself to to preserve its independence? And so that is the power to declare war. That is the appropriation of funds. That is the power, you know, there’s a long list in Article 1, section 8, relating to security matters. Preparedness, I think, is the heading I would put them all under. Article 2, and a president is the innovation of this Constitution, an executive is the commander-in-chief. In the event of a war, an attack, a need to use it, or some kind of threat that we need to preempt to preserve our independence. So the preparedness function of the legislature and the troop command, if you will, function of the executive, I think are the two concepts that fit together.

Daniel K. Wigg | 04:24.517

My understanding is back in, I think it was 1787, Alexander Hamilton commented on the concept of declaring war, and putting my own phraseology, almost as if he said it was out of fashion, or it was somewhat of a passé notion to declare war.

Could you address that a little bit before we get into some more topics here?

Professor John Q. Barrett | 04:48.473

Well, I think that is one of the hopes of this new country and one of the advantages of the geographic isolation and the landmass, that European wars, princely kingdoms, border disputes, states regularly fighting each other, was something that we could avoid, that we would be spared by our unity as a United States and by our isolation geographically. So it’s not quite a naive optimism that war will never be an American experience, but it’s a hope that the United States will be an economically developing, rising power, a functional confederation of states, and largely spared the military history and destruction that the European continent, of course, our ancestral experience, had developed through.

Daniel K. Wigg | 05:35.516

When Hamilton mentioned that, I mean, did he have, and I’m drawing a blank right now, what was to the north of us back in 1787, and what was to the south of us? Because you mentioned, sort of as if you look at the Europeans, the sort of state border conflicts.

Did he envision any fighting with our northern neighbors or our southern neighbors?

Professor John Q. Barrett | 05:53.252

Well, I think there’s always a scenario and a possibility, but the hope is for diplomacy. And, frankly, the hope is for enough land mass to go around. So that the French Empire to the north, the Spanish Empire to the south, the French property to the west, which we ultimately buy – Louisiana, are space for all to coexist.

Daniel K. Wigg | 06:15.348

Now getting into sort of the declaration of war. Congress has not declared war, as I’m sure you very well know, since 1942. We declared war, I believe it was against Romania. I have a list here, but I’m forgetting. Anyway, it was a bunch of countries in connection with World War II. And immediately prior to that, it was the axis powers of World War II, Germany, Italy, and Japan we declared war against.

Professor John Q. Barrett | 06:37.927

Right. And those 1942 declarations are really axis power allies connected to December of 1941.

Daniel K. Wigg | 06:46.061

But we all know, for example, anyone who watched the TV show M*A*S*H*, there was this war in the 1950s called the Police Action. And, of course, we know about the Vietnam, some might say, debacle of the mid 60s to early 70s.

How do you explain Korea and Vietnam?

The president sent soldiers there. The president was, I presume, acting as commander in chief, Truman, Eisenhower, then Kennedy, Johnson and Nixon. But Congress didn’t declare war. Walk us through how that happened.

Professor John Q. Barrett | 07:16.149

Well, Congress had ratified the United Nations Treaty, and the United Nations responded to the North Korean aggression of 1950 by putting, through Security Council action, the United States on the side of South Korea. So we, the United States, are by treaty and by membership on the Security Council, connected to and committed to that international collective defense, that police action.

There was a fluky development in the summer of 1950, where the Soviet Union was boycotting the Security Council proceedings. So its permanent membership otherwise would have put it in a position to veto the United Nations commitment to come to the defense of South Korea. But the Russian boycott meant, the Soviet boycott, that they were not there. And so the United Nations, including the United States, and the United States is a treaty signatory is part of this international use of force commitment. And then the structure of the force, if you will, is under the command of General Douglas MacArthur. It’s not entirely an American military force but is principally American soldiers. And so kind of in another modern, at the time, structural path, we are in a war of defense of our allies and of the world order.

And in the moment, summer of 1950, until it kind of started to go on too long and the toll started to be too high, this was incredibly popular and not controversial for President Truman, under the auspices of the United Nations, under the leadership of General MacArthur, under the conscription and deployment of American troops, to be waging a war against the communists, against the threat to global peace and security.

Daniel K. Wigg | 09:08.404

Was there any… Any voices at that time who said, you need to declare war?

Professor John Q. Barrett | 09:12.911

Oh, sure. There are some. There are some. I mean, you know, from Senator Margaret Chase Smith, who is the lone vote against it, I believe, and other commentators of, you know, formalists and traditionalists who say whatever the U.N. Treaty is, and whatever the Security Council decision is, we have a constitutional system that, of course, is bicameral. Treaty ratification is only the Senate. Declaration of war is the entire Congress, both the House and the Senate. There’s a different path that we should be on. It should be the 1941 path. It should be the 1917 path, not this 1950s hybrid. But those voices, I think, are certainly not the mainstream, not powerful. There’s not much question at the beginning that we are doing something proper and indeed virtuous.

Daniel K. Wigg | 10:00.523

So fast forward then 15 years to the… Early-mid 1960s Vietnam services. Talk to us about how the U.S., you know, got itself involved.

Professor John Q. Barrett | 10:12.191

The U.S. has an alliance, a support relationship with South Vietnam, and South Vietnam, it’s kind of a  mirror of what we just discussed about North and South Korea. South Vietnam is fighting an insurgency against North Vietnam, a sprinkling of insurgent actions, but a territorial division and a military threat. And so we are sort of replacing France, which had withdrawn in the 1950s from its colonial position, supporting South Vietnam, supporting with some armaments, supporting diplomatically, and in the early 1960s, supporting with a modest number of U.S. Military advisors. These aren’t fighters by design. They are coaches, if you will, to train and supervise and be present on the scene, so that the South Vietnamese army will stand up better and defend itself better against the threat of aggression from the North.

And then the slippery slope, the assassination of President Diem, which the United States has a hand in, in 1963. North Vietnamese aggression in the Gulf of Tonkin, which is a publicized event in 1964. President Johnson asking the Congress, and he was very much former Senate majority leader, et cetera, former vice president, a legislatively connected president, a new president, obviously, in the wake of Kennedy’s assassination, a popular president asking the Congress for a resolution of support on behalf of our ally, who we are advising, who is dealing with this aggression, most recently in the Gulf of Tonkin. And the Congress passes that resolution. It is a, you know, relatively short and open-ended statement that we are on the side of South Vietnam. And Lyndon Johnson thereafter treats it as his blank cheque, really, as his legislative permission to grow the American involvement, advisors become troop deployments, obviously a massive military buildup, fighting and dying. And Congress continues to appropriate funds. To support that U.S. Involvement across 64, 65, and the years thereafter.

So again, not a formal declaration of war, but the fingerprints of Congress, if you will, on an alternative document that is treated functionally by the executive branch as the same thing.

Daniel K. Wigg | 12:34.521

And is it safe to say that Vietnam, we moved from, as you said, which I found very interesting, a coach of those fighting the northern communists to being the actual warriors?

Professor John Q. Barrett | 12:45.512

Oh, absolutely. I mean, you know, the military involvement, I can’t tell you statistically, but the sort of fighting forces in Vietnam by 66, 67, 68 are American-dominated.

Daniel K. Wigg | 12:58.221

It just sounds like the word quagmire. That’s where we get that from. Congress, I guess, was getting unhappy because then we have the War Powers Act of 1973. Richard Nixon is now president. He vetoes it.

Talk to us a little bit about how that came about.

Professor John Q. Barrett | 13:12.811

Well, some intervening development. Slow down the chronology. Johnson, in 68, was eligible to run for an additional term. He had not served more than half of JFK’s term. And so he was entitled to be elected twice in his own right. And the quagmire in Vietnam, the anti-war candidacy of Eugene McCarthy, and then followed by the anti-war candidacy of Senator Robert Kennedy, caused Johnson to say that he will not seek a term, he will not accept a nomination. And he spends the lame-duck year 1968 trying to negotiate and trying to bring the war to an end. It’s Hubert Humphrey who’s the Democratic nominee, and he probably didn’t separate himself early enough from President Johnson. Humphrey’s the vice president. George Wallace is a strong segregationist third-party candidate, so it is a three-way race, but Richard Nixon is a peace candidate and is elected in 1968, a minority of the vote, less than 50% of the vote, but elected through the Electoral College process. With a claim that he will bring this war to an end. And, of course, he does not bring this war to an end. During his first term, indeed, he in different ways grows this war. It’s secret at first, but the spread of the War West into Cambodia is Nixon’s secret war, and the Cambodian bombing becomes public by 1970 to eradicate so-called North Vietnamese sanctuaries, in Cambodia, to the west of Vietnam. And so, you know, it is Nixon’s war. It wasn’t supposed to be Nixon’s war. It was Johnson’s war, and Nixon was supposed to end it. But now it’s Nixon’s war. It’s still an American war. The death toll is enormous. And the anti-war movement is a pitched domestic reality in the United States.

Daniel K. Wigg | 15:00.275

Let me ask you this question before you continue. So when Nixon is running in 68, did he take any position of what we’re talking about now that Congress should have declared, did he adhere to the resolution that he think that was fine, did he express any concern, or was he just I’m going to end this quagmire, then things happened differently.

Professor John Q. Barrett | 15:18.478

I think the latter, although I can’t claim, I’m not recalling a Nixon formal objection to the absence of a declaration of war. It was the reality of the fighting and the dying that Johnson had brought on that Nixon was going to, on assuming office, bring to an end.

So we’re going into that 1972 election with, you know, a longer, deeper quagmire, a horror of American involvement in Vietnam. But it is, you know, an anti-communist war, a patriotic war, and against perhaps two left and anti-war candidate- George McGovern, Nixon wins the landslide.

One other thing I want to tuck into that 1972 year is that some personnel mysteriously connected with the re-election committee and White House security are arrested burglarizing the Watergate offices. But, you know, notwithstanding that, notwithstanding Vietnam, Nixon is elected in a landslide in 1972. So, you know, now it is entirely his war, but he doesn’t have to worry about the voters again, and maybe he can bring it to an end. and there is the Paris negotiations and Kissinger and les deux toes proceed with that.

But during 1973, it’s still ongoing. And Nixon is becoming more and more embroiled and implicated in the Watergate matter. And there is a Democratic majority that controls both the Senate and the House, that is trying to basically cut off the oxygen supply, of the Vietnam War. It’s taking too long, way too long. We’re in the fifth year of Richard Nixon. And so, you know, what do we do about hostilities?

By the fall of 1973, the Congress passes what we call a resolution,  it’s really legislation, that is a consultation requirement, a reporting requirement, and a shutoff valve on executive use of military force. Richard Nixon vetoes that. He says It’s fundamentally inconsistent with my article II responsibilities as commander-in-chief. But then, in October of 1973, the Congress overrides the veto. And that’s how we get what we call the War Powers Resolution, or the War Powers Act. It requires a president to upfront in advance, consult the Congress before sending American forces into hostilities. In that respect, it sort of accepts that de facto, our starting moment is not a declaration of war from Congress anymore. There’s too much history, Truman, Johnson, Nixon, executive action putting American forces into hostility. So the resolution says there should be consultation before that happens going forward.

Once American forces are in hostility, there’s a reporting requirement in case it is in an obscure, off-stage, hard-for-media-to-cover location. Think Cambodia. The statute says the president has a duty to notify the Congress. And then it starts a clock, a 60-day clock in which the legislature can approve, endorse, declare war, appropriate more funds, back the president in that deployment of forces into hostilities, and the political push and pull can occur. But if Congress does not greenlight it during the 60 days, then the War Powers Resolution says there is a cutoff of executive authority to continue this. And so it’s a pullout requirement.

The president has an ability to extend it for 30 more days. So 60 can become 90 days, but at the end of 90 days, without a green light from the Congress, the War Powers Resolution says automatically the red light goes on, and then we should bring our forces home.

Daniel K. Wigg | 19:03.249

Did Nixon have any support for this notion that the War Powers Act of 73 encroached on his, I should say, the President’s Article II powers?

Professor John Q. Barrett | 19:12.954

It is a serious challenge to the Command authority, an unfettered command authority that Article II gives to a commander-in-chief. But you’re only the commander-in-chief once your forces are deployed and in the field. And the War Powers Resolution is really addressing the predicate event, how it comes to be that American forces are out there under a commander-in-chief.

But yes, Nixon, Nixon has support. He has support from his supporters in the Congress, not enough to prevent the veto override, but there are some. He has legal opinions inside the executive branch, quite strong executive power thinking, that is the basis of his veto message, and over time, you know, kind of going forward into history, subsequent presidents, in various ways, have subscribed to the Nixon concern that the War Powers Resolution too much distorts the executive branch responsibility and is unconstitutional.

That’s never been tested in court. It’s never really been something on which a president has taken a stand in the face of a congressional resolution of disapproval. It’s never been the basis of an impeachment, much less a trial and a conviction. So it’s sort of a face-off between the two branches, the Congress and the president, with starkly opposed views of the propriety of the War Powers Resolution.

Daniel K. Wigg | 20:39.038

I want to get into some of the, what subsequent presidents sort of did in this area, and get your thoughts on that. But the thing that strikes me is the requirement that the president has to sort of pull force, I’m sort of paraphrasing, pull forces and stop. That seems to me, and I wanted your thoughts, is that a little irresponsible?

Because even if you think that, you know, Congress thought Nixon was mismanaging this thing, back in the early 1970s, pulling out, and maybe we saw this in Vietnam, again, I’m no war expert, but that could potentially cause even more of a problem. We’ve heard accusations, for example, when President Biden pulled out of Afghanistan, people made accusations that it was very dangerous and it harmed soldiers and harmed civilians.

What are your thoughts on that?

Professor John Q. Barrett | 21:23.443

Yeah, well, I first want to say that, I also don’t have a military service background, so I bring an amateur’s common sense to it. But I think there is a lot of common sense to that concern. I think ideally in a perfectly functioning political system, that is a topic for discussion and accommodation between the legislature and the executive. The president explaining that, you know, 60 days is too soon, and I need, you know, this more time, and this is what we’re in the midst of, which could be the basis for a legislative authorization, a limited declaration of war, a particular additional resolution, a particular new appropriation of funds, in an ideal world. In a highly polarized, anti-war, anti-Vietnam moment like 1973, the patience, if you will, the communication, if you will, between Congress and Nixon was over, especially since a majority in the Congress, ultimately a supermajority, was coming to the conclusion that the president was a crook through Watergate, especially because in the fall of 1973, there were concerns about the mental stability of President Nixon. This is the 1973 war in the Middle East. This is the president raising the U.S. Nuclear status level to a heightened level. The Congress is quite concerned that this commander-in-chief power, this finger-on-the-button power, et cetera, is in a dangerous place, and the War Powers Resolution is a pushback on all of that, that Nixon problem.

Daniel K. Wigg | 22:55.410

Let’s talk about some subsequent president’s actions, and you’ll get your thoughts on it. So, 1986, Ronald Reagan Bombs, Libya, I think he kills Muammar Gaddafi’s daughter in that process. We know it was probably the first televised war, as some would say, in the early 91. H.W. Bush goes into Iraq, the first Gulf War. W. Bush, after 9-11, goes into Iraq again, the Saddam Hussein eventual capture. President Obama bombed Libya, I believe. And of course, now we have President Trump, not just Iran, but some months ago, Venezuela.

I give you the floor. Talk to us about these, your thoughts, it might be too much for one episode, but, you know, you are the expert, so I defer to you.

Professor John Q. Barrett | 23:38.740

Well, we could grow the list. I mean, President Clinton in Kosovo in 1999 is another international umbrella structure, but a deployment of U.S. forces. In each of these instances, you know, sort of at the threshold, the executive branch, although providing in some instances the notification. required by the War Powers Resolution, puts down its marker that it’s doing this voluntarily, it’s not being compelled, that compulsion is constitutionally improper, and that it does not accept the idea that the law puts a clock and a deadline and legislative control on the president’s action in the national interest and the national defense. They have different scale, and there were unique circumstances in each of those. The Reagan, April 1986 bombing of Libya was quick, was denied publicly to be a decapitation attempt, but, you know, quite clearly was, I think.

Daniel K. Wigg | 24:36.091

It was a response to the bombing in Lockerbie, Scotland, if I’m not mistaken?

Professor John Q. Barrett | 24:39.833

No, not Lockerbie. There were American soldiers in a discotheque in west Germany that it was responded to. Lockerbie was 88, so this is two years pre-Lockerbie. But Libyan government-connected terrorism was a continuing plague in the view of the U.S., our national security interests, and Gaddafi events up through 1986 provoked that retaliation. And yes, it was a bombing of a location that he was in. He was not hit. The baby girl was killed. And so, you know, the president just did that as a covert action pursuant to an intelligence finding and a notification under the National Security Acts to the intelligence committees. And I think there was no particular anti-war movement or pro-Gaddafi movement or peace movement that objected. It was quick, and it was over.

The First Gulf War, President George H.W. Bush, responding to the televised summer of 1981 Iraqi aggression, invasion of Kuwait, capture of the Kuwaiti oil fields, was then responded to by President Bush building an international coalition, and months of diplomatic work and votes, ultimately through the United Nations and congressional resolutions, and so forth. So by the time Desert storm occurred, early in, maybe it’s 91, you know, everyone’s approval, international and congressional, was part of this process.

If we want to talk about an ideal, collaborative, cooperative system, that may be the paradigm case. And that, you know, massive shock and awe, General Schwarzkopf driving the Iraqi forces north out of Kuwait, deciding not to continue on to Baghdad, not to decapitate the Iraqi government, not to capture and hold accountable Saddam Hussein is a self-restraint by the executive branch when it had really the forces and the legal and diplomatic approval to, you know, go harder and go farther. And maybe in hindsight, you know, given the subsequent Iraq war and so forth, that’s a regrettable, but at the time quite admirable, proportional, shared policymaking determination.

Jumping to the other side of 9-11, the war in Afghanistan and then the war in Iraq are both done by President George W. Bush as our Article II executive, and, in that context, as our Commander in chief, pursuant to congressional resolutions that are authorized for the use of military force. And those are, you know, the first one, the Afghanistan resolution is al-Qaeda and those who harbored them based in Afghanistan, et cetera, very much directly responsive to 9-11. The second AUMF is more open-ended and vague, but it is an authorization to go into Iraq, and ultimately, that becomes the overthrow of Saddam Hussein’s government and his ultimate capture, and the occupation, and the long American military involvement in Iraq. But those are both congressionally authorized, and those AUMFs are reinforced today.

There’s been regular efforts on Capitol Hill by members of Congress to repeal, rescind, at least modify those AUMFs, and none has succeeded to this day. And I think, you know, this is editorial comment, I guess, I think Congress has been happy for the power, the responsibility, the controversy, and the risk of turning out to be politically wrong to be in the White House.

Checks were sent over there in 2001 and 2002, and no Congress has been willing to sort of pull it back and take a chance on later consequences. So, you know, to this day, Senator Mark Warner and others have been supporters of repealing those AUMFs. I think there’s even been a Senate vote, but there’s not been a House vote, and they remain in effect.

Daniel K. Wigg | 28:42.194

Sticking on the war in Afghanistan, give me the sort of the constitutional reason why Congress did not declare a war. Is it because it was a terrorist organization and not a state?

Professor John Q. Barrett | 28:51.409

Yeah, I think de facto the AUMF functions as a declaration of war. It’s a majority vote. Each House of Congress it’s presented to the president. So it’s more a nomenclature distinction than anything else. But war is traditionally a state-to-state, sovereign powers, and since this was a use of force inside a state targeting a terrorist group, a non-state actor, perpetrator group, perhaps that explains the nomenclature choice.

The Obama-Libya strike is an interesting, I would call it, sort of a side case. It’s an effort to take out Gaddafi. It’s much less ambiguous and concealed than the Reagan 1986 action, and it’s based on a legal opinion that this will not be hostilities, that this is a, you know, sort of a quick process and so the War Powers Resolution, triggered by putting American forces into hostilities, is not implicated here. It’s a sort of all-powerful aerial strike situation. And, you know, that may be clever lawyering, clever by two half too much, but that’s a navigating around. And perhaps at least more respectful to the existence of the War Powers Resolution.

I think the recent second President Trump term uses of military force are really cases unto themselves. In the Venezuela situation this winter, you know, it is a, it’s an apprehension of President Maduro, it turns out he was under a sealed indictment of the United States, but it’s a breach of sovereign territory, it’s a deployment of U.S. Military forces. You know, back where we started this conversation, anybody looks at that and says, this is war, brief and successful but, you know, this is a shooting war. Luckily, no Americans are killed. Maduro is apprehended. It’s successful, and we have you, whatever our ongoing relationship is with the successor government in Venezuela. But this is the United States starting it. And back to article 1, you know, the initiator is supposed to be the Congress. There isn’t an AUMF that applies in the Western Hemisphere that applies to South America, this is really just the president using an Article 2 theoretical power beyond the text of Article 2.

Perhaps emboldened by that, the success of that. The popularity of that, the brevity of that, in late February, of course, we, in collaboration with Israel, begin this ongoing war that we have with Iran. And that is, you know, a massive ship deployment, a significant bombing campaign. We don’t know of American troops on the ground, but, you know, has the prospect to be a long and continuing involvement. Maybe negotiations are in the process of resolving that and bringing it to an end, but it’s entirely without Congressional involvement. So, again, it is an undeclared war, and by what standard is it legal? Especially since aggression, and now I’m going back to Korea, is something that the United States, as a signatory to the United Nations Charter, has put itself legally on the side of opposing.

In other words, we have violated maybe our constitutional structure, and we’ve also violated our commitments under the United Nations Charter, not to be a military aggressor.

Daniel K. Wigg | 32:17.111

Going back to Venezuela for a second, and speaking very colloquially, there was, as you mentioned, the sealed indictment against Maduro. What argument is there that, you know, hey, we have an indictment against him, I need to bring this guy to justice. He happens to be in Venezuela, he happens to be their president, although I think dictator seems to be the more appropriate term, but that’s another question, perhaps.

What value, or what basis does it have any merit?

Professor John Q. Barrett | 32:43.248

Well, there is. The reality of extraterritorial deployment of U.S. Law enforcement resources, obviously aided by diplomatic and military capacities. There is a Supreme Court adjudication of the question of whether extraterritorial arrests constitute Fourth Amendment events, whether it’s a search or seizure, that may only be reasonable under the Constitution and generally, the court has held that the Fourth Amendment doesn’t restrain that extraterritorial behavior. And we have a history of international law enforcement against cartel leaders, for instance, murderers of U.S. law enforcement personnel who are fugitives in non-U.S. locations, snatching and grabbing and bringing people here for legal accountability.

I would say that the sort of formalities of the legality of those endeavors are not easily worked out, but maybe they’re sub-war, and maybe they are non-Fourth Amendment seizures and so maybe they are, in some, you know, sovereign capacity, especially if you have legislative appropriation, delegation of law enforcement powers, consular, et cetera, relationships that put our law enforcement personnel internationally, maybe that is something that is constitutionally being conducted by the United States. And in Venezuela, of course, you know, brevity, targeted, Maduro, Mrs. Maduro, in and out, you know it kind of looks like an arrest. It just happens to be an arrest, not in domestic soil, but internationally.

That has nothing to do with what we’re doing in Iran.

Daniel K. Wigg | 34:19.701

Right. So going back to Iran, is it that the Trump administration didn’t consult with anyone in Congress, or did they just consult with what we would call allies? Because I seem to recall hearing something, well, we didn’t tell everybody because we don’t trust, there are leakers out there, and whether or not that is a valid argument is, again, perhaps another question.

Professor John Q. Barrett | 34:40.889

I mean, operational security, again, as a common-sense matter, is a high value. We do have a structure in our Congress of intelligence committees that have existed since the 1970s that are staffed by highly responsible, experienced national security specialists, in the legislative branch, the elected members and their staff, and there is a significant level of trust, and reliability in keeping the secrets in those intelligence committees. You know, the so-called gang of eight, legislative leadership, speaker of the House, the majority leader, the minority leader, the chairs and the ranking members of the intelligence committees. That’s a very trusted, small set, and historically, has functioned very well.

I did have considerable contact quite a few years ago with the intelligence committees when I worked at Iran-Contra and had high security clearances and I was sort of in that world, and as a historical matter, huge, weighty secrets regularly were kept. You know, we’re in a partisan time, but I think a sort of institutional suspicion probably isn’t called for when the stakes are high. Our elected representatives, be they the president or a member of Congress, are working for us in the national interest, that should be the presumption, and I don’t know of an instance where a member of Congress has breached an intelligence committee’s impending military action secret in the way that the leak concern would seem to worry about.

Daniel K. Wigg | 36:14.157

Another, I’ll use the word “justification,” and maybe the incorrect word to use for the action in Iran is that Iran are bad guys. They’re a sponsor of terrorism, there’s this whole thing about them having nuclear capabilities and more scarily, using those capabilities against their neighbors, against U.S. interests.

Does that justification, as sort of broad as I just laid it out to you, provide any rationale, constitutionally or otherwise?

Professor John Q. Barrett | 36:41.411

No, I think the world is filled with bad guys. That’s a reality from, you know, the 1780s to the present day. And our structure of government makes legislators responsible for deciding what to do about the scale of badness that we are worried about. We can do a military buildup. We can do a declaration of war. We can, you know, fortify ourselves in various ways. It’s just a policy problem. And of course, you know, you rank your bad guys. Those who need to be dealt with militarily now are the ones on whom you declare war.

You know, that’s Roosevelt on December 8 1941, after Pearl Harbor. Asking for a declaration on Japan, given what they’d done, and a few days later, asking for a declaration, reciprocating really, because Hitler had declared war on us first, but reciprocating and seeking a declaration of war on the Axis powers. It’s Woodrow Wilson in 1917 saying this great war in Europe is our concern, too. You know, we know through intelligence information that Germany had aspirations to operate in this hemisphere, Zimmerman, Telegram, collaboration with Mexico, et cetera. This is now our problem. And we rank it high, and we need a declaration of war, a shared national commitment. You just don’t sort of delegate the determination of who is sufficiently bad to the president. And sit back for four years and hope he has good rankings and good intelligence and picks good spots. That’s not the representative government that we have. That’s a,  it’s a different scheme.

Daniel K. Wigg | 38:21.520

So in our remaining time, we have left a little bit about you. I mentioned in the introduction that you are probably the premier biographer of Justice Jackson. You probably are the, I correct myself, the capital T-H-E. Talk to us a little bit about what piqued your interest in Justice Jackson that has made you such an authority on him.

You send out the Jackson list. I’m on your email list. You know, talk to us about that.

Professor John Q. Barrett | 38:47.430

Well, thank you. Robert Jackson is one of those great American stories. He’s a farm birth late in the 19th century in rural western Pennsylvania, and he rises to be a powerhouse in private law practice and then a very significant executive branch official under President Roosevelt. He becomes solicitor general and then attorney general of the United States. He becomes a U.S. Supreme Court justice in 1941, and then, by very unorthodox, by our standards at least, appointment of President Truman, in 1945, he becomes the United States chief prosecutor of the principal Nazi war criminals at Nuremberg.

So the Jackson story is amazing. Jackson as a person, I, and luckily many others, find quite attractive and quite compelling. He was relatively straightforward, relatively non-ideological, very explanatory, and very gifted at explaining himself. In his speeches, in his writings, in his Supreme Court opinions, he had a gift for words. And so what he did, his arc, how he explained himself, and how it turns out to be of lasting significance, is the constellation of things that got me interested.

He lived in big times and dealt with big issues and explained himself quite well, and those big issues are still our big issues.

Daniel K. Wigg | 40:13.406

And on that note, Professor John Q. Barrett, thank you so much for this extraordinarily interesting and informative conversation. To our listeners, thank you for tuning in. I’m Dan Wigg, your host. That is a wrap.

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