The term “war” is found at four locations in our Constitution. However, the word alone signals nothing about the powers of the two political branches the Constitution creates, executive and legislative, and nowhere in the Constitution does the term “war powers” appear. At some point in our history, the word “powers” was coupled with “war.”
In May 2011, shortly after a special operations team of Navy SEALs killed al Qaeda leader Osama bin Laden, there was a fresh surge of enthusiasm for covert operations. That is unfortunate because, behind the scenes, secret warfare is actually in crisis. We need to re-examine the suitability and constitutionality of covert operations and, among other
things, devise a sound constitutional framework for conducting them.
When al Qaeda launched the 9/11 attacks, it also thrust the United States on a decade-long (and counting) search for the best way to combat the unconventional threat posed by terrorism. That search evolved into a competition of sorts between the military’s Special Operations Forces (SOF) and the paramilitary operatives of the Central Intelligence Agency (CIA) for the prestige and resources that went with leading the fight against terrorism.
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.
Words are imperfect instruments for conveying ideas, and interpreting the intended meaning of words is often a challenge, especially when more than two centuries have passed since the words were written and their meanings have evolved over the years. For example, the terms “executive power” and “declare war” had widely understood meanings when the Constitution was written.
Professor Turner argues that Congress’s power to “declare war” and issue letters of marque and reprisal is an irrelevant “anachronism” in today’s world, and was virtually irrelevant even in 1787. According to Turner, the Declare War Clause only prevents the President from launching “a major aggressive war.” In his view, the President has the power to launch “minor” aggressive wars and even initiate “major” warfare (“major” is not defined) when such warfare can broadly be termed “defensive,” a vague term also not defined by Turner.
Just suppose. The Attorney General, lanky as the President, walks into the Oval Office to join a meeting. The top law enforcement officer is slumped down with apparent bad news. He avoids eye contact with the Commander-in-Chief. “Mr. President,” he says looking down at the coffee table, “the ACLU believes our drone program is illegal.” Silence.
The standard framework for understanding presidential decision making in projecting American power and influence into other countries is to assume that the Administration develops diplomatic, military or covert options which the President then assigns to State, Defense or the CIA (sometimes in combination). This framework is incomplete, because
diplomacy is carried on not only by officers of the United States but also by an “invisible presidency” of informal emissaries.
Paramilitary operations – “PM ops” in American spytalk – may be defined as secret war-like activities. They are a part of a broader set of endeavors undertaken by intelligence agencies to manipulate events abroad, when so ordered by authorities in the executive branch. These activities are known collectively as “covert action” (CA) or, alternatively, “special activities,” “the quiet option,” or “the third option” (between diplomacy and overt military intervention).
Presidential advisers, both Democratic and Republican, long ago discovered ways to magnify presidential power at the cost of legal principles and the system of checks and balances. This essay briefly considers the limits to executive branch capacity to provide reliable legal and constitutional analysis in times of emergency, including covert military
operations.
Leon Panetta appeared on PBS Newshour not long after the raid that killed Osama bin Laden. He was the Director of the Central Intelligence Agency at that time, and during the course of the interview he took up the question of the CIA’s role in the attack.
* United States v. Boyd (E.D.N.C. Sep. 14, 2011) (yes, another guilty plea) Well, I spoke to soon. Another DOJ win in a terrorism case. You have to admire the concatenation of inchoateness in this particular charge: aiding-and-abetting a conspiracy to provide material support to terrorists, where that underlying material support offense in turn is [...]
* United States v. Harpham (E.D. Wash. Sep. 7, 2011) (guilty plea) Ok, this should be it for today. Last week was a busy one for DOJ in terrorism cases! In this case, Kevin Harhpham has pled guilty to placing an IED along the planned route for the MLK Day parade in Spokane last January. [...]
* United States v. Payen (S.D.N.Y. Sep. 7, 2011) (25 year sentence in NY terror plot) From the press release: NEW YORK – Laguerre Payen was sentenced today to 25 years in prison for plotting to bomb synagogues in the Riverdale section of the Bronx, N.Y., and to use Stinger surface-to-air guided missiles [...]
* United States v. Irfan Ul Haq, et al. (D.D.C. Sep. 12, 2011) An interesting case. The three defendants (all citizens of Pakistan) ran a human smuggling operation in Ecuador, and agreed to smuggle a man whom they believed was a member of the Pakistani Taliban from Pakistan into the United States. They have [...]
Sigh….the listserv software did not like my use of HTML text in the first attempt to announce this event. I hope this goes better: * upcoming events: The HLS-Brookings Project on Law and Security, "Law, Security, & Liberty after 9/11" (Harvard, Friday and Saturday this week) (co-sponsored by the Harvard National Security Journal) [...]
"Differential News Framing of Unmanned Aerial Drones: Efficient and Effective or Illegal and Inhumane?" APSA 2011 Annual Meeting Paper TIMOTHY JONES, Bellevue College, University of WashingtonEmail: tim.jones@bellevuecollege.eduPENELOPE SHEETS, affiliation not provided to SSRNCHARLES ROWLING, University of WashingtonEmail: rowlingc@u.washington.edu Over the past four years, the United States has significantly expanded its use of unmanned aerial vehicles, [...]
* forthcoming scholarship The Soldier, the State and the Separation of Powers (email dpearlst@yu.edu for copy of the paper) Deborah N. Pearlstein (Cardozo) (forthcoming Texas L. Rev. 2012) As U.S. counterterrorism activities continue to engage the armed forces in profound legal and policy debates over detention, interrogation, targeting and the use of [...]
