Covert War and the Constitution/Covert War and the Constitution: A Response

Editors' Note: The Journal of National Security Law & Policy invited Jules Lobel and Robert F. Turner to debate the constitutionality of covert war for this special issue. Professor Lobel wrote his essay first, and it follows below. Professor Turner wrote a counterargument, and his essay follows Professor Lobel's. We then invited each to write rebuttals, included after these essays.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.1 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 . . ..2Despite Justice Paterson's admonition, Presidents since World War II have relied extensively on CIA covert paramilitary activities in a wide range of countries to attempt to overthrow governments deemed hostile to United States interests.3 More recently, U.S. military Special Operations Forces have engaged in clandestine, anti-terrorist military activities in other countries,4 and the CIA has also waged a shadow war on several continents against terrorists.5Modern Presidents have argued that the executive branch has the power to authorize the use of covert paramilitary force without the approval of Congress.6 Congress, has on occasion, limited or ended funding for particular covert paramilitary operations,7 but has not required the Executive to obtain congressional approval to engage in such actions.8 Congress has instead required merely executive reporting of anticipated covert actions to congressional committees.Despite congressional acquiescence in covert unilateral Executive warmaking, some commentators argue that covert paramilitary actions, which cannot truly be kept secret for any length of time, must under the Constitution be debated and approved by Congress.9This essay argues that covert paramilitary operations or shadow wars cannot be unilaterally undertaken by the President, but constitutionally require the authorization of Congress.10 First, the Constitution's text and early practice of the founding generation confirm that all wars that the United States engages in - whether little or big, whether fought by paramilitary forces, private mercenaries, contractors, or regular U.S. armed forces - require congressional approval. Second, the various utilitarian rationales proffered to justify executive covert or shadow wars, such as the argument that the need for secrecy precludes congressional debate and participation, do not withstand scrutiny.I. THE FRAMERS AND PARAMILITARY OPERATIONSWhile the Framers of the Constitution could not have anticipated the establishment of a Central Intelligence Agency that would undertake far flung covert paramilitary activities around the globe, they were quite familiar with governmental use of private armed forces operating with the authorization of the central government. …