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

8 "Covert" Paramilitary Action and War Powers1

Gary M. Sternand Morton H. Halperin

The Iran-Contra affair was the most recent demonstration of the deep incongruity and danger that unauthorized covert action poses in a democracy. In a country founded on the principle of a shared foreign affairs power, the President has come to assert a unilateral authority over all use or support of military force by the United States, especially through covert action. The officials who ran the Iran-Contra affair completely bypassed every democratic check placed upon the Executive branch. This abuse by the Reagan Administration suggests that we take another look at the role of such activities in U.S. foreign policy.

The term "covert action" comprises a range of activities, from those verging on diplomacy to those verging on war. This chapter focuses exclusively on covert paramilitary actions, or "secret wars"--clandestine activities intended to provide lethal support to participants in a foreign military conflict without officially revealing the role of the United States. We argue that maintaining the official "deniability" of such actions serves no necessary foreign policy objective while it significantly undermines a fundamental constitutional check on Executive branch action. Accordingly, we propose that the officially "covert" aspect of such activities be eliminated by requiring prior congressional authorization in accordance with procedures that should be followed for overt wars.


THE ADVENT OF OVERT/COVERT ACTIONS

Over the last few decades, Presidents have come to use covert action largely to avoid congressional involvement; they fear that Congress will ask too many questions and might actually oppose the operation. Robert McFarlane said it pointedly when he testified at the Iran-Contra hearings: the President and his advisors "turned to covert action [in Nicaragua] because they thought they could not get Congressional support for overt activities."2 Yet it is rarely the case that

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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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