What Does 'Commander in Chief' Really Mean?

How Presidents' Military Powers Have Changed Over Time

President George W. Bush chatting with sailors on US aircraft carrier
President Bush Speaks to Nation from Aircraft Carrier. U.S. Navy / Getty Images

The U.S. Constitution declares the President of the United States to be the “Commander in Chief” of the U.S. military. However, the Constitution also gives U.S. Congress the exclusive power to declare war. Given this apparent constitutional contradiction, what are the practical military powers of the Commander in Chief?

Article II Section 2 of the Constitution—Commander in Chief Clause—states that “[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” But, Article I, Section 8 of the Constitution gives Congress the sole power, To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; …”

The question, which comes up almost every time the grim need arises, is how much if any military force can the president unleash in the absence of an official declaration of war by Congress?

Constitutional scholars and lawyers differ on the answer. Some say the Commander in Chief Clause gives the president expansive, almost unlimited power to deploy the military. Others say the Founders gave the president the Commander in Chief title only to establish and preserve civilian control over the military, rather than give the president additional powers outside a congressional declaration of war.

The War Powers Resolution of 1973

On March 8, 1965, the 9th U.S. Marine Expeditionary Brigade became the first U.S. combat troops deployed to the Vietnam War. For the next eight years, Presidents Johnson, Kennedy, and Nixon continued to send U.S. troops to Southeast Asia without congressional approval or official declaration of war.

In 1973, Congress finally responded by passing the War Powers Resolution as an attempt to stop what congressional leaders saw as an erosion of Congress’s constitutional ability to play a key role in military use of force decisions. The War Powers Resolution requires presidents to notify Congress of their commitment combat troops within 48 hours.

In addition, it requires presidents to withdraw all troops after 60 days unless Congress passes a resolution declaring war or granting an extension of the troop deployment.

The War on Terror and the Commander in Chief

The 2001 terrorist attacks and the ensuing War on Terror brought new complications to the division of war-making powers between Congress and the Commander in Chief. The sudden presence of multiple threats posed by poorly defined groups often driven by religious ideology rather than allegiance to specific foreign governments created the need to respond faster than allowed by the regular legislative processes of Congress.  

President George W. Bush, with the agreement of his cabinet and military Joint Chiefs of Staff determined that the 9-11 attacks had been funded and undertaken by the al Qaeda terrorist network. Further, the Bush administration determined that the Taliban, acting under the control of the government of Afghanistan, was allowing al Qaeda to house and train its fighters in Afghanistan. In response, President Bush unilaterally sent U.S. military forces to invade Afghanistan to fight al Qaeda and the Taliban.

Just one week after the terrorist attacks – on Sept.

18, 2001 – Congress passed and President Bush signed the Authorization for Use of Military Force Against Terrorists Act (AUMF).

As a classic example of “other” ways of changing the Constitution, the AUMF, while not declaring war, expanded the president’s constitutional military powers as Commander in Chief. As the U.S. Supreme Court explained in the Korean War-related case of Youngstown Sheet & Tube Co. v. Sawyer, the president’s power as Commander in Chief increases whenever Congress clearly expresses its intent to support the actions of the Commander in Chief. In the case of the overall war on terror, the AUMF expressed Congress’s intent to support future actions taken by the president.

Enter Guantanamo Bay, GITMO

During the U.S. invasions of Afghanistan and Iraq, the U.S. military “detained” captured Taliban and al Qaeda fighters at the U.S. Naval base located at Guantanamo Bay, Cuba, popularly known as GITMO.

Believing that GITMO – as a military base – was outside the jurisdiction of the U.S. federal courts, the Bush Administration and the military held the detainees there for years without formally charging them with a crime or allowing them to pursue writs of habeas corpus demanding hearings before a judge.

Ultimately, it would be up to the U.S. Supreme Court to decide whether or not denying the GITMO detainees certain legal protections guaranteed by the U.S. Constitution overstepped the powers of the Commander in Chief.

GITMO in the Supreme Court

Three Supreme Court decisions related to the rights of the GITMO detainees more clearly defined the military powers of the president as Commander in Chief.

In the 2004 case of Rasul v. Bush, the Supreme Court ruled that U.S. federal district courts had the authority to hear petitions for habeas corpus filed by aliens detained within any territory over which the United States exercises “plenary and exclusive jurisdiction,” including the GITMO detainees. The Court further ordered the district courts to hear any habeas corpus petitions filed by the detainees.

The Bush Administration responded to Rasul v. Bush by ordering that petitions for habeas corpus from the GITMO detainees be heard only by military justice system tribunals, rather than by civilian federal courts. But in the 2006 case of Hamdan v. Rumsfeld, the Supreme Court ruled that President Bush lacked constitutional authority under the Commander in Chief Clause to order the detainees tried in military tribunals.

In addition, the Supreme Court ruled that the Authorization for Use of Military Force Against Terrorists Act (AUMF) did not expand presidential powers as Commander in Chief.

Congress, however, countered by passing the Detainee Treatment Act of 2005, which stated that “no court, court, justice, or judge shall have jurisdiction to hear or consider” petitions for writs of habeas corpus filed by alien detainees at GITMO.

Finally, in the 2008 case of Boumediene v. Bush, the Supreme Court ruled 5-4 that the constitutionally guaranteed right of habeas corpus review applied to the GITMO detainees, as well as to any person designated as an “enemy combatant” held there.

As of August 2015, only 61 mainly high-risk detainees remained at GITMO, down from a high of about 700 at the height of the wars in Afghanistan and Iraq, and almost 242 when President Obama took office in 2009.  

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Longley, Robert. "What Does 'Commander in Chief' Really Mean?" ThoughtCo, Dec. 3, 2016, thoughtco.com/what-is-a-commander-in-chief-4116887. Longley, Robert. (2016, December 3). What Does 'Commander in Chief' Really Mean? Retrieved from https://www.thoughtco.com/what-is-a-commander-in-chief-4116887 Longley, Robert. "What Does 'Commander in Chief' Really Mean?" ThoughtCo. https://www.thoughtco.com/what-is-a-commander-in-chief-4116887 (accessed December 15, 2017).