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CHAPTER 1

From Solution to Illusion

The American government operates under a system of checks and balances. The executive, legislative, and judicial branches have their own defined roles and one of the significant responsibilities of Congress is to declare war if circumstances demand that the nation move to active military combat. As commander in chief, the American president directs the conduct of the wars declared by Congress. Given that general understanding, most Americans may not actually realize that the United States has not declared itself to be in a state of war since 1941. The American military fought and died during years of major conventional military action in Asia, ranging from Korea in the early 1950s to Vietnam throughout the 1960s and 1970s. We even call those the Korean and Vietnam "wars." Later there were major American military engagements in the Arabian peninsula, the invasion of Iraq, and years of ongoing combat deployments in Afghanistan. None of that combat occurred with a formal congressional declaration of war. In between those undeclared, conventional wars there were literally dozens of "shadow wars," with their own engagements, combat, and casualties — each directed under the authority of the president as commander in chief and none declared as wars by Congress.

In reality there are a number of alternatives to the formal declaration of war, all of which lead to military action. In profiling "shadow warfare," our first challenge will be to examine how the system really works. We will consider to what extent the checks and balances concept applies to presidential decisions to initiate or approve covert operations and how America enters into military action with its own personnel or with surrogate forces — without congressional declarations of war. In doing so we will pay particular attention to why virtually every president has turned to covert, deniable warfare as a solution for international problems.

More than one president has ordered deniable military operations strictly on his own initiative. More than one president has suffered extreme political and public censure for covert actions. Still, such operations have continued for decades, varying only in frequency and duration. In overt conventional warfare Congress is asked to either declare war or at least pass resolutions endorsing some level of military action. No such legislation is required for presidential directives ordering covert actions; in fact, it was not until the 1970s that Congress passed legislation mandating presidential "findings" that at least would notify select members of Congress that such operations were going to be conducted — or were already in progress. Given the uncertainty of shadow warfare and its huge political risk, we will also address the question of why virtually every president makes the personal decision to choose it as a solution, oftentimes deciding to essentially go it alone.

We must look to the past and to the evolution of warfare itself to understand the development of undeclared warfare and covert operations — concepts generally foreign to the Founding Fathers and to combat in the early years of the American republic. Under the Constitution of 1787, Revolutionary War veteran Alexander Hamilton justified the creation of a unitary executive — the president — in large part on the belief that having a single commander was necessary to protect the United States in an efficient and decisive manner during war and times of emergency. Hamilton, one of General George Washington's chief advisors during the Revolutionary War, argued that, in contrast to a triumvirate or other forms of leadership, a presidency with one "energetic" executive could make the decisive, efficient, and coherent choices required by the exigencies of war. Yet Hamilton's cohort James Madison recognized the need to circumscribe such power through a system of democratic checks and balances, lest war become a justification for tyranny. Therefore under the Constitution, Congress declares war and the president, as commander in chief, "prosecutes" or "directs" the conflict. With the industrialization of warfare and the emergence of totally new forms of weapons, the president's role became further emphasized. New weapons and technology not only changed the nature of combat itself, but posed unique challenges to the decision to engage in warfare.

During World War II, America was extremely fortunate to have the time needed to mobilize and deploy a modernized military force. But post–World War II missile and rocket technology severely limited the reaction time for America's military commanders. The risk of "first strike" nuclear warfare only amplified the dilemma. This threat of instant warfare grew to become a justifiable reason for the creation of intelligence agencies such as the Central Intelligence Agency in 1947 and the National Security Agency in 1952. Those organizations were created with the intent to identify threats before they materialized. Weapons innovations also catalyzed the centralization of America's military forces and assets under the "national command authority" of the president and secretary of defense. Only they could give orders to the Joint Chiefs and the Pentagon to move the United States to immediate combat readiness in defense of the nation — and only they could order the launch of atomic strikes.

More than anything, the exigencies of modern warfare placed an even greater premium on Hamilton's original goals of efficiency and decisiveness in command. In a world with no more than fifteen minutes' notification of an impending atomic attack, Hamilton's issue of decisiveness had assumed an overwhelming importance. There is no doubt that compression of decision time in the twentieth century contributed to the shift of discretion to the president, in his role as commander in chief of the American military. Congress has, at times, attempted to reassert its control over military affairs yet the demand for immediate response to crises has left the initiative with the president. And, as will be discussed in a later chapter, and demonstrated in the shadow wars profiled throughout this book, while lawmakers tend to complain about a lack of respect by the president for congressional oversight, exemplified by vague or nonexistent notification and guidance about covert operations, the lack of presidential accountability actually has the potential to work in favor politically for members of Congress.

It is significant to note that the United States Congress has not officially declared war since 1941, but that hasn't stopped America from fighting full-scale conventional actions and conducting long-term covert operations. By allowing the president to be left "holding the bag" for military commitments, elected representatives can avoid negative publicity surrounding failed operations. This works both ways, as lawmakers can be blamed for votes in favor of unpopular wars (as in the case of the Vietnam War) or for failing to vote in favor of successful wars (as was the case in the first Iraq War). Avoiding a vote altogether provides political advantages, especially in the case of covert warfare — which by its very nature becomes public only when it fails, sometimes dramatically.

As far back in American history as the early eighteenth-century predations of the Barbary pirates against American commercial ships, the congressional view has held that presidents are free to act in the defense of the nation. Facing ongoing attacks on America's ships and kidnapping of American sailors, Congress considered the need to declare war against the pirates. Alexander Hamilton argued that while a formal congressional declaration of war was required to initiate a war, the circumstances in question involved ongoing attacks on American interests. Thus, Hamilton argued, America was already in a state of war initiated by the pirates, and a president did not need any formal inspiration from Congress to engage the enemy and defend the country's interests. Congress seems to have accepted that proposition, as no resolution was put forth and President Thomas Jefferson did send the U.S. Navy after the Barbary pirates in North Africa.

The overt military actions since 1941, however, have most often carried the endorsement of some type of congressional joint resolution. Passed by majority votes from both chambers of Congress and signed by the president, the resolutions have the effect of law. But unlike a declaration of war, they are often broadly constructed, providing lawmakers with less detailed accountability for military actions and allowing the president much broader discretion. Still, even with joint resolutions, the court of public opinion indirectly imposes limits on overt wars, as it did with the protests against the "Vietnam War." In a broad sense, the exposure to such popular opinion may have reinforced the temptation to engage in less public military operations, namely covert wars fought via surrogate combatants.

A considerable amount of current media dialogue on covert action and secret warfare appears to take the view that such actions are either fundamentally illegal or at least legally questionable. However, since 1947, all American presidents have taken such action based on provisions in the National Security Act of 1947, which describe and sanction the activities of the Central Intelligence Agency. Based on that act and the U.S. legal code that embodies its provisions, secret warfare actions have been authorized by a succession of presidents over some seven decades. The language of this legislation has been interpreted to mean that the president does not need additional congressional action for such actions. Indeed in the early decades of the Cold War, the interpretation was that the president was not even under any specific legal requirement to inform Congress about such actions in order to ensure maximum operational security and deniability. In some instances presidents did communicate with key congressional leaders; in others they did not. While issues and questions have been raised as to what exactly constitutes covert operations, until this point in time the constitutionality of the National Security Act has not been challenged, much less ruled on by the Supreme Court — leaving it as standing legal justification for presidential covert action.

Even so, it is also clear that individual activities conducted during those operations are still open to arguments of legality. Early in the Cold War years, President Dwight Eisenhower was concerned about defining his parameters as commander in chief. In effect, a five-star general such as Eisenhower was still uncertain of what the president's constitutional and legal options were in regard to both conventional and covert military action. This led Eisenhower to ask the Justice Department to explore the legality of his desire to dispatch the military into potential combat operations, without a formal congressional declaration of war, on his own authority as commander in chief. Justice responded with an opinion as to what a president, as commander in chief, can do outside the country without a declaration of war from Congress.

As it happened, a body of legal precedent had recently developed in regard to unilateral presidential behavior in foreign affairs. Several Supreme Court cases related to the issue of executive agreements — agreements between a president and a foreign country that do not require the constitutionally prescribed threshold of ratification by two-thirds of the Senate. Scholar Vikki Gordon noted that these cases "collectively established the president's authority to issue directives involving 'external affairs.'"

In keeping with this established line of thinking, Eisenhower's Justice Department provided him with an opinion about the president's unilateral authority on military commitments. It provided him with several scenarios under which a president could commit military resources to a mission with limited or no congressional approval:

1. In a "state of emergency," the president can commit troops to conventional combat based on a resolution of approval by Congress.

2. If the U.S. military is not personally going into combat or into a live combat zone, the president can approve military assistance to "friendly" governments as a matter of routine international relations. So, while the president cannot just say, "Go ahead, guys! Go get 'em!" he can send troops in for military assistance. And in the case of Indochina, that's what Eisenhower did.

3. Finally, and most relevant to a discussion of the legality of covert warfare, it provided a third allowance: self-defense. The president was seen as justified in commanding the deployed military personnel to defend themselves. Given the multiple ways a president can interpret "self-defense," this becomes an important legal underpinning for the future of covert wars. That general advice provided to Eisenhower by the Justice Department set the context for everything a president can do today. It is, in its simplest form:

If a president wants to send the military into hostilities, Congress needs to pass a resolution that says the president can go ahead and enter combat. If a president wants to act preemptively, in self-defense of the nation or its military personnel, or in providing military assistance to its allies, he can do so without a Congressional resolution.

Following this guidance, Eisenhower and his successors have routinely dispatched American military personnel overseas under the umbrella of "military assistance," in training, advisory, and aid program evaluation roles. In addition, President Eisenhower established a basic practice in deciding between overt and covert warfare. On several occasions, the Eisenhower Administration approached Congress in regard to potential military interventions that it viewed as necessary. In instances when Congress was receptive and passed resolutions to support military deployment (the Taiwan Strait in 1955; the Middle East in 1957), combat resources were openly dispatched. When Congress balked, however, Eisenhower limited the American military role to "non-combat support and logistics assistance" (Indochina in 1954). But when it came to sensitive international or domestic political situations, Eisenhower turned covert, enlisting the operational resources of the Central Intelligence Agency. As initially implemented during the Eisenhower Administration, the context and guidelines for the practice of deniable warfare also became relatively consistent, driven by the language in the National Security Act and the legal code supporting it. In essence, as interpreted by presidents from Harry Truman through Barack Obama, the National Security Act of 1947 said that in regard to covert operations:

1. The U.S. government was not to be officially on record as being in a state of war.

2. No public congressional authorization or declaration was required and all necessary activities were authorized under presidential direction, in the president's role as commander in chief.

3. Covert action was allowed to be preemptive; the nation was not required to wait to be physically attacked. The president would make the decision to turn to covert, deniable warfare in the interests of national security.

Successive presidents applied the same basic practices, and continued to accept the fundamental precept that in self-defense, preemption is a legitimate reason for covert action. It should also be noted that the provisions of the National Security Act and the concept of preemptive action were so well established that multiple presidents, including Dwight Eisenhower, Bill Clinton, and George W. Bush, all initiated projects intended to assassinate targeted individuals including Patrice Lumumba, Osama bin Laden, and Saddam Hussein.

We will see that the president's decision has occasionally been unilateral, but more frequently has been supported by the participation and policy of a highly select body convened to deal with national security issues. Late in 1947, President Truman formalized such a body, describing it as "a channel for collective advice and communication." Truman initially designated the group the National Security Council, which was comprised of the vice president, secretary of state, secretary of defense, and other members as designated by the president. Yet even in Truman's first characterization, he made clear that the council's role was strictly advisory, asserting that the ultimate decision was the president's alone. "With complete freedom to accept, reject, and amend the Council's advice ... it is the prerogative of the President to determine such policy and enforce it."

In 1948, the Office of Policy Coordination (OPC) was established to conduct both psychological and paramilitary activities. In 1951 the OPC was merged with the CIA, and in 1952 its functions were assumed by the CIA's Directorate of Plans. In 1973, the Directorate of Plans was renamed the Directorate of Operations and as of this writing the organization is designated the National Clandestine Service. Truman's primary objective in setting up the new Cold War–era national security organizations had not been specifically to pursue covert operations, including deniable warfare. But the advent of full-scale warfare in Korea in 1950 proved a huge stimulus for such activities.

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Excerpted from "Shadow Warfare"
by .
Copyright © 2014 Larry Hancock with Stuart Wexler.
Excerpted by permission of Counterpoint.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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