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.
Tag: Law of Armed Conflict
The Constitutionality of Covert War: Rebuttals
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.
White House Decisionmaking Involving Paramilitary Forces
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.