Covert War and the Constitution: A Response

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. In his classic 1922 study, The Control of American Foreign Relations, Quincy Wright explained that “when the constitutional convention gave ‘executive power’ to the President, the foreign relations power was the essential element in the grant, but they carefully protected this power from abuse by provisions for senatorial or congressional veto.” Wright referred to the writings of Locke, Montesquieu, and Blackstone5 as “the political Bibles of the constitutional fathers,”6 adding: “In foreign affairs . . . the controlling
force is the reverse of that in domestic legislation. The initiation and development of details is with the President, checked only by the veto of the Senate or Congress upon completed proposals.”

By Robert F. Turner

Robert F. Turner holds both professional and academic doctorates from the University of Virginia School of Law. He co-founded the Center for National Security Law with Professor John Norton Moore in April 1981 and has served as its associate director since then except for two periods of government service in the 1980s and during 1994-95, when he occupied the Charles H. Stockton Chair of International Law at the U.S. Naval War College in Newport, Rhode Island. A veteran of two Army tours in Vietnam, Turner served as a research associate and public affairs fellow at Stanford's Hoover Institution on War, Revolution and Peace before spending five years in the mid-1970s as national security adviser to Senator Robert P. Griffin, a member of the Senate Foreign Relations Committee. He has also served in the executive branch as a member of the Senior Executive Service, first in the Pentagon as Special Assistant to the Under Secretary of Defense for Policy, then in the White House as Counsel to the President's Intelligence Oversight Board, and at the State Department as acting assistant secretary for legislative affairs. In 1986-87, he was the first president of the congressionally established United States Institute of Peace. A former three-term chairman of the ABA Standing Committee on Law and National Security (and for many years editor of the ABA National Security Law Report), Turner has taught undergraduate courses at Virginia on international law, U.S. foreign policy, the Vietnam War and foreign policy and the law in what is now the Woodrow Wilson Department of Politics. In addition he the law school seminars Advanced Topics in National Security Law I & II with Professor Moore. The author or editor of more than fifteen books and monographs (including co-editor of the Center's National Security Law, National Security Law Documents, and Legal Issues in the Struggle Against Terror) and numerous articles in law reviews and professional journals, Turner has also contributed articles to most of the major U.S. newspapers

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