Constitution Check: Is the War Powers Clause a dead letter in the Cyberspace Age?
The statement at issue:
“A secret legal review of the use of America’s growing arsenal of cyber-weapons has concluded that President Obama has the broad power to order a pre-emptive strike if the United States detects credible evidence of a major digital attack looming from abroad…New policies will govern how the intelligence agencies can carry out searches of faraway computer networks for signs of potential attacks on the United States and, if the president approves, attack adversaries by injecting them with destructive code – even if there is no declared war.”
– Lead story in The New York Times, February 4, under the headline “Broad Powers Seen for Obama in Cyberstrikes,” by reporters David E. Sanger and Thom Shanker.
We checked the Constitution, and…
Those who wrote the Constitution didn’t want the president to be able to take the nation to war without the consent of Congress. They were willing to allow the president to act on the basis of presidential authority alone to repel sudden attacks, but that was understood to be a grant of authority for the short term only. Since then, of course, America has gone to war over and over again, and yet Congress has formally declared such a conflict only five times; the most recent was World War II.
The debate among the Founders over the difference between “making war” and “declaring war” has actually never ended, and government officials, lawmakers, and scholars to this day regularly engage each other in sometimes heated exchanges over who can commit U.S. military forces to actual hostilities that, for all that appears, are wars even if not given that name by Congress.
In the George W. Bush administration, government lawyers advised the White House in the wake of the 9/11 terrorist attacks that the president could act alone–as commander in chief–to send U.S. military forces overseas to engage in war-like operations, “especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States,” as the main legal memo put it.
The Obama administration embraces that view, just as fully, and perhaps even more so. In fact, internal but still-secret legal memos apparently exist in support of presidential authority to go beyond the counter-insurgency operations of the Iraq and Afghanistan “wars,” to engage in entirely new forms of military action.
News organizations have turned up evidence that there is at least one internal document that provides a legal defense for President Obama’s policy of using unmanned but precision-guided aerial drones explicitly to attack and kill leaders of terrorist networks, such as Al Qaeda. There have been two attempts to challenge that legal conclusion in federal court lawsuits, but both have come to nothing; the courts have been unwilling to second-guess that policy on any legal grounds.
About Constitution Check
- In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.
Now, it appears from an account in The New York Times and recent stories in other major media that the Obama administration is developing a broad new policy–with the support of secret legal memos–to engage in “cyber-warfare.” Only very digitally savvy experts can know, or guess, how such attacks will be carried out, but they apparently have the capacity to completely demobilize an entire nation’s electronic communications network, or at least to disable a specific target for an assault with a destructive computer code.
Once more, though, the legal justification for this sweeping war-making power does not exist in public, and therefore its basis in the Constitution–or lack of any such basis–cannot be analyzed and debated. There is no such thing, in short, as transparency in the arguments that the president alone can take the nation into digital warfare.
It is possible, and probably even likely, that there are committees of Congress who are let in on the secret of cyber war-making and its legal rationale. But that, too, is not open for public examination.
If one were to return to the Constitution and its War Powers Clause, one might ask what value was there in requiring that Congress “declare” war before the government could “wage” war? Probably the main value was the promotion of political accountability: if one is prepared to authorize war, one must be prepared to defend that choice to the voters and to the community at large.
A secondary virtue, perhaps, was the understanding that waging war required more than military effort, and might even require the full mobilization of society’s resources in order to perform that task successfully. It would be important, therefore, to have the American public on board before such a task was undertaken.
When sketchy news accounts, based on unidentified sources, are the only evidence to suggest that the government is about to enter a new form of war-making, that does not have and cannot have the same effect as a transparent act of government. To know, but only from news sources, that the government is going to begin, or continue, new acts of belligerency is not to give society’s political consent through a representative body of the government.
Such novel forms of war-making no doubt have to be surrounded in secrecy, by their very nature. But to have public discourse on whether the Constitution allows such wars, and by whose authority, does not need to get into what is secret: such a debate would be a legal argument, using public sources and precedents, and it might even be measured and reasoned. If it could happen, it could show that there is something very meaningful about the word “declare” when used to start a war.
UPDATE: On Monday night, NBC News published an Obama administration “white paper” that discusses the legal reasons for the drone policy. The network said the paper, which was not dated, is not the legal memo that has been discussed, but does attempt to provide some of the justification. It can be read here.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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