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.
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. It had been “a ‘title 50’ operation,” he explained, invoking the section of the U.S. Code that authorizes the activities of the CIA. As a result, Panetta added, he had exercised overall “command.”
This surely confused at least some observers. The mission had been executed by U.S. Navy SEALs from Joint Special Operations Command (JSOC) after all, and both operational and tactical command seemed to have resided at all times with JSOC personnel. But for those who had been following the evolution of the CIA and JSOC during the post-9/11 period, Panetta’s account would not have been surprising. The bin Laden raid was, from this perspective, merely the latest example of an ongoing process of convergence among military and intelligence activities, institutions, and