The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives

By Gary M. Stern; Morton H. Halperin | Go to book overview

two.38 When sensitivity is extreme, current law lets the President notify only the "gang of eight"--the chairmen and ranking minority members of the two intelligence committees, the majority and minority leaders of the Senate, and the Speaker and minority leader of the House.

No process can legislate wisdom or prevent circumvention. Process is, as we have seen, no guarantee against stupid presidential decisions or the resulting public scandals. But a requirement for advance notification--coupled with a ban on covert operations by any entity, public or private, other than the CIA, and with specific civil and criminal penalties for violators--would take the United States further in managing the inherent tension between secrecy and open government that is the root of American ambivalence about covert action.

If the Congress saw fit to create a single focal-point for engaging the Executive in discussion about both overt and covert uses of force, so much the better. If doing so contributed to the kind of real consultation between politicians not dependent on one another that was the point of the process for setting in motion covert action, better still. Surely, the first task is to give Congress something like the consultative role in open war-making that it now has in covert.


NOTES
1.
See, e.g., the colloquy between Ray Cline and George Ball in Should the U.S. Fight Secret Wars?, Harpers, Sept. 1984, at 33-47.
2.
See reports in the Washington Post, Nov. 25, 1992, and the N.Y. Times, Feb. 7, 9, and June 16, 1992.
3.
22 U.S.C. § 2422 ( 1988), section 622 of the Foreign Assistance Act of 1974, repealed in 1991 as part of the Intelligence Oversight Act of 1991, Pub. L. No. 102-88, 105 Stat. 441.
4.
50 U.S.C. § 413 ( 1988), amended in 1991.
5.
50 U.S.C. § 413 ( 1991), Pub. L. No. 102-88. The new law retained the term "timely fashion" (in the face of a presidential veto), but Congress made clear in its legislative history that it intends the language to mean no more than a couple of days. S. Rep. No. 102-85, at 39-41, reprinted in 1991 U.S. Code Cong. & Admin. News232-34.
6.
My version is in Intelligence: Welcome to the American Government, in A Question of Balance: The President, the Congress and Foreign Policy ( Thomas E. Mann, ed., 1990); see also the congressional investigation, Report of the Congressional Committees Investigating the Iran-Contra Affair, H. Rep. No. 100-433, S. Rep. No. 100-216, 100th Cong., 1st Sess. ( 1987) ( "Iran-Contra Report"); and the earlier Report of the President's Special Review Board, known as the Tower commission after its chairman, former Senator John Tower, reprinted by Bantam and Times Books in 1987 ( "Tower Commission Report").
7.
See Iran-Contra Report, supra note 6, at 41, 59-61, 72-75.
8.
The quote and the estimate are both from the Iran-Contra Report, supra note 6, at 37 & 4.
9.
Id. at 7.
10.
It was this delay that the Justice Department's Office of Legal Counsel stated was in the confines of the 1980 Intelligence Oversight Act. 'The President's Compliance with the 'Timely Notification' Requirement of Section 501(b) of the National Security Act" (known as the Cooper Memorandum), reprinted in Hearings on Oversight Legislation

-147-

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The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives
Table of contents

Table of contents

  • Recent Titles in Contributions in Military Studies ii
  • Title Page iii
  • Contents v
  • Acknowledgments vii
  • Introduction 1
  • Notes 8
  • 1: Historical Survey of the War Powers and the Use of Force 11
  • Notes 26
  • 2: Constitutional Constraints: The War Clause 29
  • Notes 46
  • 3: Statutory Constraints: The War Powers Resolution 55
  • 4: Treaty Constraints: The United Nations Charter and War Powers 83
  • Notes 98
  • 5: International Law Constraints 107
  • Notes 118
  • 6: Judicial Constraints: The Courts and War Powers 121
  • Notes 128
  • 7: Constraints on "Covert" Paramilitary Action 133
  • Notes 147
  • 8: "Covert" Paramilitary Action and War Powers 149
  • Notes 157
  • 9: Emergency War Powers 159
  • Notes 166
  • 10: Common Ground 167
  • Notes 176
  • Appendix 179
  • Selected Bibliography 181
  • Index 191
  • About the Editors and Contributors 197
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