The administration’s primary legal basis for its global activities against al-Qaeda and affiliates is the September 2001 Authorization for Use of Military Force. But that law is a tenuous foundation for military action against newly threatening Islamist terrorist groups — including the ones causing trouble now in North Africa — that have ever-dimmer links to the rump al-Qaeda organization.
The government’s offensive cyber-activities have also grown a lot in recent years with little new legislation. U.S. Cyber Command, which coordinates such operations, was established by order of the secretary of defense. The reported cyberattacks on Iranian nuclear facilities were probably justified under the president’s self-defense powers in Article II of the Constitution and a decades-old covert-action law. In 2011 Congress tersely “affirmed” the Pentagon’s offensive cyber-operations, subject to the same legal regime that governs kinetic operations. But details of the Pentagon’s authorities in this context have been worked out in secret by the executive branch acting alone.
The administration’s secret warfare finds support in opinion polls and is almost certainly lawful. Bevies of lawyers and inspectors general monitor secret executive action, as does (in some contexts) a secret intelligence court. And the executive branch regularly reports these activities to select congressional committees that are generally supportive.
Yet the legal and political foundation for secret war is weak. The legal foundation rests mostly on laws designed for another task that government lawyers have interpreted, without public scrutiny, to meet new challenges. Outside the surveillance context, Congress as a body has not debated or approved the means or ends of secret warfare (except, perhaps, through appropriations). Because secret surveillance and targeted strikes, rather than U.S. military detention, are central to the new warfare, there are no viable plaintiffs to test the government’s authorities in court. In short, executive-branch decisions since 2001 have led the nation to a new type of war against new enemies on a new battlefield without focused national debate, deliberate congressional approval or real judicial review.
What the government needs is a new framework statute — akin to the National Security Act of 1947, or the series of intelligence reforms made after Watergate, or even the 2001 authorization of force — to define the scope of the new war, the authorities and limitations on presidential power, and forms of review of the president’s actions.