U.S. Needs a Rulebook for Secret Warfare

By Jack Goldsmith
Tuesday, February 5, 2013, 6:45 PM

That is the title of an op-ed I have coming out tomorrow in the Washington Post, which is already available on line.  The premise of the piece is that, contrary to President Obama’s inaugural speech claim, “war is not ending, it is changing,” and President Obama “has presided over the rise of a secret, nimbler war defined by covert action, Special Forces, drone surveillance and targeting, cyberattacks and other stealthy means deployed in many countries.”  The upshot of the piece is that the new stealth warfare needs a better legal and political framework than it currently has.  My proposal:

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.

The framework statute should include a rethinking of the covert-action regime that was not designed for its current role. It should include special-operations activities within that regime. The statute should specify the means by which the president must keep the public informed about his secret wartime activities, including the legal basis for his actions. And it should have a sunset provision to force Congress to debate and renew the framework, in light of experience, after a set number of years. Whatever its contents, the proposed framework statute would be a focal point to debate and could legitimize— or not — the new type of war.

I am not optimistic that this will come to pass, however:

A new legal and political foundation for stealth warfare cannot succeed without the initiative and support of the president. The chances of such support, however, are dim. The Obama administration prefers to act based on old authorities and not to engage Congress in establishing new authorities for new wartime challenges. This is unfortunate for U.S. constitutional traditions and for the stability of our long-term counterterrorism strategy. And it is unfortunate for the president, not only because he increasingly acts without political cover, and because his secret wars are increasingly criticized and scrutinized abroad, but also because he alone will be bear the legacy of any negative consequences — at home and globally — of unilateral, lethal, secret warfare.