The Constitutionality of Covert War: Rebuttals

Editors' Note: The Journal of National Security Law & Policy invited Jules Lobel and Robert F. Turner to write brief rebuttals to each other's essays included in this issue, and these follow below.I. PROFESSOR LOBELProfessor Turner argues that Congress's power to "declare war" and issue letters of marque and reprisal is an irrelevant "anachronism" in today's world,1 and was virtually irrelevant even in 1787. According to Turner, the Declare War Clause only prevents the President from launching "a major aggressive war."2 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."Turner cites not a single Framer of the Constitution in support of this bold interpretation of the Declare War Clause. He ignores the reasons the Framers amended the Article I, Section 8, War Powers Clause, which originally read "make" war. The language was changed to "declare war" to clarify - as the notes of Madison, the amendment's author, make clear - that the President had the power to "repel sudden attacks."3 In addition, as other delegates argued, the change from "make" to "declare" war ensured that the President had the authority as Commander-in-Chief to conduct (or make) war that Congress had authorized.4 Neither reason for the change supports broad presidential power to initiate hostilities unilaterally.Moreover, Turner's claim that Congress's war power only applied to declaring "large scale perfect wars" was explicitly rejected by the Supreme Court in a series of cases between 1800 and 1804 that made clear that congressional power extended to the authorization not only of large scale "perfect wars," but lesser "imperfect" wars, where "those who are authorized to commit hostilities . . . can go no further than to the extent of their commission."5 As Justice Samuel Chase pointed out in Bas v. Tingy, "Congress is empowered to declare a general war, or Congress may wage a limited war: limited in place, in objects, and in time . . . ."6Professor Turner similarly ignores the Framers' intent that the President lacked the authority to authorize paramilitary attacks on other nations. Thus, for example, he fails to respond to the 1806 case of United States v. Smith, which I cited in my essay. In that case, Supreme Court Justice Paterson held that the President had no authority to approve of a covert paramilitary expedition against Spanish America, because the President has no "power of making war," which "is exclusively vested in congress."7 Since Justice Paterson was a delegate to the Constitutional Convention, he presumably had some knowledge of the Framers' intent.Turner asserts that there is "no serious evidence, that the Framers" viewed the Marque and Reprisal Clause broadly to provide congressional power over lesser hostilities than full scale war, claiming that the clause only provides Congress power to authorize private ship owners to use force on the high seas. Yet Turner fails to even acknowledge or respond to the statements of prominent leaders of the new Republic, including Thomas Jefferson and Alexander Hamilton, that Congress was expressly given the power to order "reprisals" by either private or public naval forces short of war against others nations. …