Covert War and the Constitution
The question of whether the President has the constitutional power to authorize covert paramilitary actions or shadow wars against other nations or entities first surfaced at the beginnings of the American republic and continues to vex policymakers today. As early as 1806, in the case of United States v. Smith, two civilians being tried for attempting to launch a paramilitary expedition from the United States against Spanish America claimed that their covert activities had been secretly approved by President Jefferson and Secretary of State Madison. Supreme Court Justice William Paterson, a delegate to the Constitutional Convention, who presided over the trial, held that the defense’s proffered testimony was immaterial, because the Constitution,
[W]hich measures out the powers and defines the duties of the
president, does not vest in him any authority to set on foot a
military expedition against a nation with which the United States
are at peace. . . . If then, the president knew and approved of the
military expedition . . . it would not justify the defendant . . .
because the president does not possess a dispensing power. Does
he possess the power of making war? That power is exclusively
vested in congress; for by the eighth section of the 1st article of the
constitution, it is ordained, that congress shall have power to
declare war, [and] grant letters of marque and reprisal . . . .