In the post-9/11 environment, the United States confronted the Taliban, al Qaeda, and associated terrorist and insurgent groups, where the conventional military force that quickly forced Iraq’s retreat from Kuwait and subdued the Milosevic regime in Kosovo in the 1990s was far less effective. Paramilitary campaigns waged by the CIA and contractors became an integral part of the counterterrorism response to these new enemies, and our military greatly expanded its own capabilities to collect intelligence and carry out clandestine operations. Over time, first in the Bush administration and now in an expanded and more aggressive strategy by the Obama administration, the United States has been conducting what The New York Times described as a “shadow war against Al Qaeda and its allies”:

In roughly a dozen countries – from the deserts of North Africa, to
the mountains of Pakistan, to former Soviet republics crippled by
ethnic and religious strife – the United States has significantly
increased military and intelligence operations, pursuing the enemy
using robotic drones and commando teams, paying contractors to
spy and training local operatives to chase terrorists.

Legislative control over external affairs took centuries to develop. The English Parliament gained the power of the purse in the 1660s to restrain the king, but the power to initiate war remained a monarchical prerogative. In his Second Treatise on Civil Government (1690), John Locke identified three functions of government: legislative, executive, and “federative.” The last embraced “the power of war and peace, leagues and alliances, and all the transactions with all persons and communities without the commonwealth.”  To Locke, the federative power (what today we call foreign policy) was “always almost united” with the Executive. Any effort to separate the executive and federative powers, he counseled, would invite “disorder and ruin.”

I. HOST COUNTRY REACTIONS: PAKISTAN
A delegation of Pakistani officials recently completed a visit to Washington for very private talks about a secret war. Representing that nation’s premier spy agency, the Inter-Services Intelligence (ISI), and headed by its chief, Lieutenant General Ahmed Shuja Pasha, the Pakistani delegation came to America to rein in the CIA. While CIA spokesmen put the best possible face on this event – calling the talks “productive” – there was no real meeting of the minds. The raid on bin Laden, executed without reference to Pakistani sovereignty, added insult to injury, since Pakistani demands to be kept fully informed of U.S. activities were clearly ignored in the SEAL operation. And just to pile on, American pundits, including former CIA director Leon Panetta, proceeded to accuse Pakistan of complicity or incompetence, given bin Laden’s presence in a Pakistani garrison town. Observers should be in no doubt that this moment marks a watershed in the South Asian secret war. Much like the Tet Offensive in the Vietnam conflict, the event signifies the instant when U.S. capabilities peak, past which further escalation on any plane becomes less probable.

Many critics of the George W. Bush administration’s wholehearted push into the realm of shadow wars – covert operations in countries with which the United States was not at war – assumed that the situation would improve when Barack Obama became President. To the surprise of many, if not most, of his campaign supporters, however, President Obama has, in some ways, become an even more ardent supporter of shadow wars than his predecessor. And, as this article will show, just about every indication points to a further expansion of this hybrid military and intelligence activity in countries beyond war zones. It is imperative, therefore, that we more clearly understand how these shadow wars are being conducted and by whom, and whether they are subject to adequate oversight and accountability.

[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 . . . .

The President is cool. “Could you be more specific,” he says, tapping his finger on a black briefing book.

The Attorney General looks up from the table. “The drone strikes in Pakistan. Remember, the program Leon was not supposed to talk about with the media.”

The President smiles. “Yes, I know that. But which laws are they talking about?”

After an awkward pause, the President, himself a highly sophisticated lawyer, suggests, “Let’s talk this through some more.” The Attorney General agrees. After the lawyer-to-lawyer exchange, the other advisers relax. Maybe the CIA drone strikes are not illegal after all. Or maybe the apparent illegality does not matter that much. The Vice President takes a sip of his drink. And the President asks for tea and coffee to be served. No one wants to leave the room after all. They open their briefing books instead.

This scenario emphasizes a simple point: President Obama, a Harvard Law School graduate, a former teacher of constitutional law at the University of Chicago and a Nobel Peace Laureate, must believe that he has the authority to order the CIA to fire missiles from drones to kill suspected terrorists. Not everyone agrees with him, though.

This article offers a brief history of America’s paramilitary activities, with special attention to the relationship between intelligence analysis – the attempts by the CIA and its fifteen companion agencies to understand contemporary world events and forecast how they will unfold – and the use of paramilitary forces to achieve U.S. foreign policy goals.

This surely confused at least some observers. The mission had been executed by U.S. Navy SEALs from Joint Special Operations Command (JSOC) after all, and both operational and tactical command seemed to have resided at all times with JSOC personnel. But for those who had been following the evolution of the CIA and JSOC during the post-9/11 period, Panetta’s account would not have been surprising. The bin Laden raid was, from this perspective, merely the latest example of an ongoing process of convergence among military and intelligence activities, institutions, and
authorities.

[This provision] represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantánamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must beamong the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation’s counterterrorism efforts and has the potential to harm our national security.

The congressional action and the President’s response are part of a broader public debate about the role of law enforcement as a counterterrorism tool. Some question the effectiveness of the U.S. criminal justice system and argue that it should never be used against terrorists, or at least some kinds of terrorists. In contrast, some others argue that law enforcement is the only legitimate way to detain terrorists, and that they should either be prosecuted in the civilian courts or released. This article argues that we should continue to use all of the military, law enforcement, intelligence, diplomatic, and economic tools at our disposal, selecting in each case the particular tool that is most effective under the circumstances, consistent with our laws and values. The discussion proceeds in five main parts.

One dominant theme in the discussion of how to strike the balance between an informed public and the need to protect legitimate national security secrets is whether new media entities like WikiLeaks are part of“the press” and whether Julian Assange and his cohorts are engaging in“journalism.” As the gathering and distribution of news and information becomes more widely dispersed, and the act of informing the public more participatory and collaborative, however, determining who is engaging in journalism and what constitutes the press has become increasingly difficult. It is not possible to draw lines based on the medium of communication, the journalistic background of the publisher, the editing process, the size of the audience, or the methods used to obtain the information.

PATHOLOGICAL PERIODS

Professor Wasserman describes Klein as the product of what Vincent Blasi “has called a period of constitutional pathology, a period reflecting ‘an unusually serious challenge to one or more of the central norms of the constitutional regime.’” Pathological periods, Blasi says, are marked by a “sense of urgency stemming from societal disorientation if not panic.” They come at a time of “a shift in basic attitudes, among certain influential actors if not the public at large,” concerned with what Wasserman calls “central constitutional commitments.” Panic can affect structural features, including formal and informal separation of powers and checks and balances, which may “exert much less of a restraining influence” on the political branches and the public.” Rigorous judicial review “must be reserved for extreme cases challenging pathological laws and action . . . as a bulwark against overreaching officials and citizens.”

Klein arose, Wasserman points out, “in a previous pathological period –Reconstruction.” That is true, but what does that say about the clarity of the decision and subsequent ability to apply it with confidence? Good things and bad things come out of periods of stress and panic. The“pathological” period after the Civil War yielded three constitutional amendments: the Thirteenth (abolishing slavery), the Fourteenth (establishing new rights), and the Fifteenth (extending the right to vote). Those years opened up new professional opportunities for women. Some branches of government may perform well, others poorly. The requirement each time is to analyze a particular case or action to determine how well a political institution carries out its constitutional duties. In considering Klein in the context of the politics of 1872, the Court was clearly under stress but issued a decision that pushed back against indefensible legislation and did so in a manner that gave clear and valued guidance to future legislation and litigation.

Professor Howard Wasserman’s response to this state of doctrinal, academic, and juridical indeterminacy is to suggest that it conclusively establishes Klein’s insignificance, and that Klein’s importance to the modern Federal Courts canon is really a “myth,” born out of a “false belief that Klein establishes vigorous judicially enforceable constitutional limitations on Congress.”  To be sure, Wasserman does not believe Klein to be devoid of force; rather, he concludes that “[m]ost blatantly Klein violative laws are never enacted; Klein-vulnerable laws that have been enacted raise no meaningful or serious Klein problems and should survive any separation of powers challenge.”

In a recent article, I attached a new label to Klein – myth. In this article, I explore the Klein-derived issues in two major pieces of national security legislation enacted as part of the ongoing struggle against terrorism. The first is Section 802 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, which granted retroactive immunity from civil liability to telecommunications providers for assisting the federal government with arguably unconstitutional warrantless domestic surveillance between late 2001 and early 2007. The second is the Military Commissions Act (MCA) of 2006, which in several provisions creates adjudicative mechanisms for dealing with terror suspects and simultaneously limits the scope and manner of judicial involvement in those cases.

In Klein, the Supreme Court struck down an 1870 law governing claims by pardoned southern property owners seeking to recover proceeds in the Court of Claims for property confiscated during the Civil War. The law prohibited any claimant who used an uncontested pardon to establish loyalty to the Union from recovering proceeds; instead, it required that courts treat the pardon as conclusive evidence that the claimant had been disloyal and thus was not entitled to recover. The legislation was intended to limit recovery by disloyal southern property owners (particularly cotton growers, such as the claimant in Klein, who had acted as sureties for Confederate officers). Congress sought not only to undo the lower-court decision in favor of the claimant in Klein (which then was pending onappeal), but also to undo the effects of the Court’s decision holding that receipt of a pardon rendered a property owner innocent in law.

Faced with this conundrum, there were two plausible courses of action open to the court. First, it could have concluded that the CSIS Act’s warrant provisions extended only as far as authorizing searches and seizures in Canada. While this approach would have left open the question whether constitutional rules applied to CSIS’s extraterritorial conduct, it would have allowed the court to avoid the incongruity of a Canadian court “legally” authorizing an invasion of privacy taking place in a foreign jurisdiction whose own laws would probably be violated by the action.

Second, the court could have reached even further and concluded that CSIS itself has no statutory authorization to conduct extraterritorial investigations, pursuant to its core, statutory mission to collect intelligence relating to threats to the security of Canada. This approach would avoid the constitutional question entirely, but with the consequence of greatly limiting the scope of CSIS’s basic jurisdictional competence.