Published by The Lawfare Institute
in Cooperation With
Tomorrow is an ignominious anniversary. On that date in 1961, about 1,400 American-trained Cuban exiles launched a secret invasion of Cuba in an effort to overthrow the Fidel Castro regime. After landing on the island’s southern coast at the Bay of Pigs, the invading guerrillas were routed by government forces. The humiliating disaster gave rise to a rare, publicly available Justice Department analysis of presidential power to wage covert war.
Although the botched Bay of Pigs operation was carried out in the first year of the Kennedy administration, most of its planning took place during the preceding Eisenhower administration. As historian William Hitchcock explains in “The Age of Eisenhower,” “Taking office, [Kennedy] found a large, complex plan already in place, endorsed by the greatest soldier of the era, and now backed by the Joint Chiefs and the CIA.”
Congress established the Central Intelligence Agency during the Truman administration, but Eisenhower did the most of any president to institutionalize the CIA’s role in covert warfare outside the context of declared or overt armed conflicts—and while keeping Congress largely in the dark. That history is itself interesting because Eisenhower believed strongly in Congress’s constitutional primacy with regard to overt warfare, as I described in recent essays about his approach to Formosa (as Taiwan was then called by the U.S. government) and the Middle East. Yet “as the CIA grew,” writes Hitchcock, “it was aided enormously by a compliant Congress. Rather than act as a watchdog, Congress ceded control of covert activities to the president.”
Arthur Schlesinger, in the “Imperial Presidency,” put it this way:
Though President Eisenhower displayed prudent skepticism about conventional war waged by regular forces, this did not mean that he was skeptical about intervention per se. Instead he made the CIA the primary instrument of American intervention in other countries. The CIA helped to overthrow governments in Iran (1953) and Guatemala (1954), [and] failed to do so in Indonesia (1958) … In no way perhaps did the old Whig more effectively deprive the Congress of a voice in foreign policy than by confiding so much power to an agency so securely out of congressional reach.
Whereas Eisenhower insisted on obtaining congressional authorization to threaten overt war in 1955 and 1957, let alone initiate it, his 1954 directive to Gen. James Doolittle commissioning a comprehensive study of covert activities doesn’t mention the Constitution or law at all. I suspect that the contrasting constitutional approach Eisenhower took toward covert versus overt warfare was partly due to the greater needs for secrecy, but I believe it had much to do with his confidence that covert wars were less likely to escalate to major, protracted conflict.
As to the Bay of Pigs invasion plan, Schlesinger wrote:
At a last meeting before inauguration, Eisenhower told Kennedy that it was ‘the policy of this government’ to aid anti-Castro guerrilla forces ‘to the utmost.’ Mentioning the anti-Castro legion he had put under CIA training in Guatemala, Eisenhower recommended that ‘this effort be continued and accelerated.’
Although it is Eisenhower who does much to institutionalize it, covert warfare has a long history under the U.S. Constitution, going as far back as covert operations ordered by the same Founding Fathers who were concerned about executive power during the drafting of the Constitution. During Jefferson’s congressionally authorized naval conflict with the Barbary pirates, he approved a covert operation to overthrow the Pasha of Tripoli, by supporting a coup by the Pasha’s brother. President Madison directed covert paramilitary operations to help wrest Florida from Spain.
Despite this long history, the first thorough and publicly available U.S. government legal analysis of covert action—activities for which the United States tried to maintain plausible deniability—that I’m aware of is a January 1962 Department of Justice memorandum, included in full at the bottom of this post, that was produced in the wake of the Bay of Pigs fiasco. (If readers know of earlier ones, please let me know!) This now-declassified memo is titled “Constitutional and Legal Basis for So-Called Covert Activities of the Central Intelligence Agency,” which it defines to include “‘black’ propaganda, commando-type raids, sabotage, and support of guerrilla activities.” The memo is unsigned other than by the Justice Department’s Office of Legislative Counsel, so I assume it was produced specifically for the purposes of briefing members of Congress. The entire memo is worth reading, but a few aspects stand out.
The memo lays out constitutional bases for covert activities—including support for proxy forces—pursuant to the president’s Article II powers, as well as arguments that Congress had at that time implicitly authorized them. The constitutional arguments start with a mishmash of familiar citations to Curtiss-Wright, In Re Neagle, and The Prize Cases, among other cases and prior Justice Department analyses. It also discussed intelligence operations requiring extreme secrecy in early American history, though most of those examples, including the Lewis and Clark expedition, are not analogous to hostile paramilitary operations.
The most interesting aspect of the constitutional analysis of covert warfare is its emphasis on Cold War context. After quoting The Prize Cases for the proposition that when the United States is attacked, the president may “meet force with force,” it goes on to say:
In waging a world wide contest to strengthen the free nations and contain the Communist nations, and thereby to preserve the existence of the United States, the President should be deemed to have comparable authority to meet covert activities with covert activities if he deems such action necessary and consistent with our national objectives. (emphasis added)
The memo further states that the “power of the President to conduct foreign relations should be deemed to be the power to conduct foreign relations successfully, by any means necessary to combat the measures taken by the Communist bloc, including both open and covert measures.” Assessed in terms of a global conflict for survival, the president’s power to wage covert warfare would then seem virtually boundless.
The 1962 memo re-emphasizes existential stakes in arguing that Article I’s Declare War Clause is no bar to executive covert action:
The exclusive power of Congress to declare war has been held not to prevent use by the President of force short of war to protect American citizens and property abroad. A fortiori, it does not prevent his use of force short of war for other purposes which he deems necessary to our national survival.
Note that although the Truman administration had a dozen years earlier asserted broad unilateral power to engage in the Korean conflict, the Eisenhower administration subsequently backed away from that position. That’s probably why the Kennedy administration’s claim here—made soon after Eisenhower’s tenure in office—construes the president’s power to use military force more narrowly than we are used to seeing today, after decades of unilateral interventions. That seeming narrowness, however, is vastly offset in the analysis by the collosal Cold War stakes.
As to congressional authorization for covert warfare, the memo states that there is neither express legislative authorization nor legislative restriction. It goes on to argue, though, that the 1947 National Security Act and the 1949 Central Intelligence Agency Act implicitly authorized covert warfare as a form of intelligence activity. It further argues that some congressional leaders were informed of covert warfare activities, and therefore Congress’s continued appropriation of funds for them constituted congressional ratification.
This memo predated legislative reforms—imposing procedural and notification requirements for covert action—that began with the Hughes-Ryan Amendment to the Foreign Assistance Act of 1974. Successive rounds of reforms expanding those requirements have greatly strengthened the arguments for implied legislative authorization of covert warfare.
The 1962 memo is thus a fascinating legal relic. It offers a snapshot of executive branch legal reasoning at a moment when both covert activities and expansive notions of presidential war powers are still being institutionalized. Given the intended deniability of covert paramilitary and proxy warfare, publicly available legal justifications for covert war are scarce. These operations rarely stay secret, but the internal legal argumentation behind them often does.