I join Ben in welcoming Marty Lederman back to blogging. His initial post–parsing both international and domestic legal issues relating to the UBL operation–is typically thorough and insightful (not to mention generally correct). Because it is a long post, however, I want to single out an interesting issue he raises that might otherwise slip past readers.
In the section of his post dealing with domestic law authorization for the UBL operation, Marty first notes the obvious applicability of the AUMF, but then writes in the alternative:
9. There might have been a second source of domestic authority, in addition to the AUMF. In his PBS interview with Jim Lehrer, CIA Director Panetta surprisingly stated that “this was what’s called a ‘title 50’ operation, which is a covert operation, and it comes directly from the president of the United States who made the decision to conduct this operation in a covert way.” It is, safe to say, very rare, perhaps unprecedented, for the Director of the CIA to disclose a CIA covert action on national television. But if that’s in fact what Panetta was doing, it would suggest that the Abbottabad operation was originally intended to be covert as a matter of statutory law—that is, “an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that thewhere it is intended that the role of the United States Government will not be apparent or acknowledged publicly,” 50 U.S.C. 413b(e)—or at the very least that there was an intent the operation might have been covert, depending on how events transpired. And if, as Panetta suggested, the operation was intended to be covert, it would have had to be conducted pursuant to the terms of a classified presidential finding under section 413b(a), and in compliance with all the conditions and requirements described in section 413b. There is no reason to think that those requirements and conditions (if they existed) were not met in the Abbottabad case, although information concerning that question would of course all be highly classified.
Part of that paragraph grapples with the question of whether this operation counted as a covert action to begin with, thus implicating requirements associated with Presidential findings and reporting to SSCI and HPSCI. Set that aside. I’m interested in the suggestion that Title 50’s covert action provisions might be cited as an adequate domestic law foundation for the operation even absent an AUMF. Of course, absent an AUMF the administration could still rely on Article II self-defense as the domestic law basis for attacking UBL, and might cite the pre-AUMF attempt to kill UBL and other al Qaeda leaders with cruise missiles in 1998. But let’s assume for the sake of argument that there is neither an AUMF or an Article II argument to address the domestic authority question. In that case, would 50 USC 413b suffice? I think this is an important but understudied issue, and it’s not one to which I’ve given a great deal of thought. It seems to me that Title 50’s covert action provisions plainly do authorize an implicitly-wide range of activities, most of which would not really implicate the separation of war powers. On the other hand, surely some such activities are of sufficient intensity that they would demand a war powers analysis if conducted openly. As to those more intense operations, should the war powers issue simply drop out if the decision is made on the front end to proceed covertly? Can one plausibly avoid the entire topic by adopting a narrow understanding of the circumstances in which the separation of war powers actually matters (ala Libya, perhaps)? I am genuinely interested in hearing from readers what they think of this, and if I can get a selection of useful responses I’ll post them (with or without attribution) later today or tomorrow.