Journal of National Security Law and Policy. "Shadow Wars." 5, no. 2 (2012). entire issue. [http://jnslp.com]
1. William C. Banks, "Shadow Wars," 315-318.
In the introduction to this issue, the author lays out some of the issues that will be covered.
2. Louis Fisher, "Basic Principles of the War Power," 319-337.
"The Framers of the U.S. Constitution assigned to Congress many of the powers of external affairs previously vested in the English king. That allocation of authority is central to America's democratic and constitutional system. When decisions about armed conflict, whether overt or covert, slip from the elected members of Congress, the principles of self-government and popular sovereignty are undermined.... Congress alone was given the constitutional authority to initiate war."
3. Herbert Lawrence Fenster, "The Great War Powers Misconstruction," 339-358.
"It would now make very little sense to solve the war powers enigma in isolation from the emerging construct of the new military. Whatever may have been the historical and definitional errors of the past, a very new construct is now essential."
4. John Prados, "The Continuing Quandary of Covert Operations," 359-372.
"We need to re-examine the suitability and constitutionality of covert operations and, among other things, devise a sound constitutional framework for conducting them."
5. Jennifer D. Kibbe, "Conducting Shadow Wars," 373-392.
"It is difficult enough to make the argument against terrorism when the CIA is conducting covert operations, but it becomes significantly more difficult when the United States is using its military in unconventional ways.... Military covert operations also raise the issue of what would happen to the operatives in the event that something goes wrong.... Their protection would depend in part on the particular situation and Washington's relationship with the country where they were captured."
6. Jules Lobel, "Covert War and the Constitution," 393-407.
"This essay argues that covert paramilitary operations or shadow wars cannot be unilaterally undertaken by the President, but constitutionally require the authorization of Congress." (Footnote omitted)
7. Robert F. Turner, "Covert War and the Constitution: A Response," 409-428.
"Presidents have used 'force short of war' both overtly and covertly hundreds of times since at least the days of Jefferson, and until recently Congress has seldom seriously complained.... [T]he Founding Fathers did not believe Congress could be trusted to keep secrets, and thus they left the conduct of diplomacy, the collection of intelligence (and efforts by spies to influence the behavior of other nations as well), and the conduct of military operations exclusively to the discretion of the president." (Footnotes omitted)
8. Jules Lobel and Robert F. Turner, "The Constitutionality of Covert War: Rebuttals," 429-437.
Lobel: "Turner's interpretation of the Declare War Clause ... reduces this important provision to a virtual nullity, easily evaded by the executive's claim that a war is either 'defensive,' or not 'major.'"
Turner: "Using military force against non-governmental actors (e.g., al Qaeda terrorists) with the consent of the host state does not even arguably infringe upon any serious interpretation of the power to declare war."
9. Afsheen John Radsan and Richard Murphy, "The Evolution of Law and Policy for CIA Targeted Killing," 439-463.
"A thorough review of the arguments against the CIA drone campaign ... shows that most critics invoke laws that do not bind American officials or laws that are vague. In a zone of ambiguity, one expects those responsible for protecting the United States to interpret their authority broadly."
10. Richard M. Pious, "White House Decisionmaking Involving Paramilitary Forces," 465-480.
In using covert, paramilitary forces, the White House can pay "high costs" to gain "tactical advantages in far-flung military adventures that have rarely proven to bring lasting advantages to the United States."
11. Loch K. Johnson, "Intelligence Analysis and Planning for Paramilitary Operations," 481-505.
"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 [footnote omitted] to understand contemporary world events and forecast how they will unfold -- and the use of paramilitary forces to achieve U.S. foreign policy goals."
12. Peter M. Shane, "Executive Branch Self-Policing in Times of Crisis: The Challenges for Conscientious Legal Analysis," 507-520.
"This essay briefly considers the limits to executive branch capacity to provide reliable legal and constitutional analysis in times of emergency, including covert military operations. It highlights the special risks government faces when the circle of presidential advisers narrows because of highly classified operations and there is less opportunity for senior officials, including attorneys, to pass judgment on pending initiatives."
13. Laura A. Dickinson, "Outsourcing Covert Activities," 521-537.
"The ever-expanding use of contractors threatens core public values because the mechanisms of accountability and oversight that the United States has generally used to curb abuses by government employees do not translate well to contractors.... Government privatization of covert activities is of particular concern."
14. Robert Chesney, "Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate," 539-629.
"The bin Laden raid was ... the latest example of an ongoing process of convergence among military and intelligence activities, institutions, and authorities." As the convergence "trend accelerates, it is becoming increasingly clear that it has profoundly important implications for the domestic law architecture governing military and intelligence activities."
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