Category Archives: Vol. 5 No. 2

Shadow Wars | This issue examines the law and policy regarding U.S. paramilitary operations, including use of drones, payment of contractors to spy, and training of local operatives to chase terrorists in what The New York Times has described as a “shadow war against Al Qaeda and its allies.”

Covert War and the Constitution

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. As early as 1806, in the case of United States v. Smith, two civilians being tried for attempting to launch a paramilitary expedition from the United States against Spanish America claimed that their covert activities had been secretly approved by President Jefferson and Secretary of State Madison. Supreme Court Justice William Paterson, a delegate to the Constitutional Convention, who presided over the trial, held that the defense’s proffered testimony was immaterial, because the Constitution,

[W]hich measures out the powers and defines the duties of the
president, does not vest in him any authority to set on foot a
military expedition against a nation with which the United States
are at peace. . . . If then, the president knew and approved of the
military expedition . . . it would not justify the defendant . . .
because the president does not possess a dispensing power. Does
he possess the power of making war? That power is exclusively
vested in congress; for by the eighth section of the 1st article of the
constitution, it is ordained, that congress shall have power to
declare war, [and] grant letters of marque and reprisal . . . .

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.”

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. Of course, no sane President would openly claim to launch an “aggressive” (or in eighteenth century parlance, an unjust war).

For example, President George W. Bush asserted that the 2003 invasion of Iraq was “defensive” although Iraq had neither attacked us nor was imminently threatening to do so, and the invasion was widely viewed by the world community as violative of the U.N. Charter. Turner’s interpretation of the Declare War Clause, of which James Madison wrote, “in no part of the Constitution is more wisdom to be found,” reduces this important provision to a virtual nullity, easily evaded by the executive’s claim that a war is either “defensive,” or not “major.”