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. Military operations are conducted not only by members of the U.S. Armed Forces – whether conventional or special operations forces – but also by others with arms (paramilitaries) with whom American armed forces or intelligence agents propose to have (or already have) a formal or informal working arrangement. Covert operations are supplied, financed and conducted not only by the CIA (and recently the Pentagon), but also by private organizations with ties to the government, such as in the Iran-Contra Affair, when arms dealers were granted extraordinary access to intelligence resources and stocks of military weapons.
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. It highlights the special risks government faces when the circle of presidential advisers narrows because of highly classified operations and there is less opportunity for senior officials, including attorneys, to pass judgment on pending initiatives.
On December 6, 2007, the Central Intelligence Agency publicly disclosed that in 2005 it had destroyed videotapes of CIA interrogations of alleged terrorist Abu Zubaydah conducted in 2002 and asserted that the destruction was “in line with the law.” The disclosure resulted in calls for congressional investigations; a motion for contempt in a Freedom of Information Act (FOIA) suit by the American Civil Liberties Union (ACLU); emergency motions in Guantánamo detainee cases; questions about the case of Zacharias Moussaoui; and an angry op-ed from the chairmen of the 9/11 Commission. The crux of these public reactions – as with the criminal investigation that resulted – was primarily the narrow issue whether the destruction of the tapes was illegal because they were relevant to pending or foreseeable cases or investigations.