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The executive branch relies in part on the "sole organ" doctrine to define presidential power broadly in foreign relations and national security, including assertions of an inherent executive power that is not subject to legislative or judicial constraints. The doctrine draws from a statement by John Marshall as a member of the House of Representatives in 1800: "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." In dicta, the Supreme Court, in United States v. Curtiss-Wright (1936), cited Marshall's speech to support an independent, extra-constitutional, or exclusive power of the president. When read in context, however, Marshall made no such claim.
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....