Undefined Power

Kenneth Falkenrath, associate of the first Minister of Homeland Security, Michael Chertoff, and former deputy homeland security advisor to BushCheney, writes:

But the president, as commander in chief, does have some authority to conduct offensive information warfare against foreign adversaries. However, as with many presidential powers to wage war and conduct espionage, the extent of his authority has never been enumerated.

Let's look at the Constitution, shall we?

The Congress shall have power to...declare war[.]

And those "many presidential powers to wage war" are found here:

Alright, we do have to concede that Congress' exclusive war-making power is a dead-letter and was well before BushCheney occupied the Oval Office. So really, Falkenrath should have written, "The president's exclusive power to wage war". But I nitpick.

Continuing:

Therefore, before our courts are forced to consider the issue and potentially limit executive powers, as they did after President Harry Truman tried to seize steel plants in the early 1950s, Congress should grant the White House broad authority to wage offensive information warfare.

By explicitly authorizing these offensive operations in appropriate, defined circumstances, a new statute would strengthen the president’s power to provide for the common defense in cyberspace. Doing so wouldn’t answer all the questions that this new era of warfare presents. But one thing is sure: as bad as this arms race will be, losing it would be even worse.

What Falkenrath is saying is let's cut out the malarkey and simply make the president's dictatorial powers to wage war official.

Again, this would merely codify the status quo. So Falkenrath doesn't really have anything to say. Why he wrote this op-ed is a mystery. (Why the NYT chose to publish it is also a mystery, but for the moment beside the point.)

Only the most churlish among us would point out that Falkenrath and Chertoff stand to make oodles of money off of permanent warfare. Only the most churlish.

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