WASHINGTON, November 7, 2017 – Although Congress has not declared war, Americans are dying in combat on a regular basis. In January a Navy SEAL was killed alongside civilians in Yemen. Another SEAL was killed while accompanying Somali forces on a raid in May.
In October, four Army soldiers were killed in an ambush in Niger. These American combat deaths, along with the 10 service members killed this year in Afghanistan and Iraq, show us how a law passed shortly after the Sept. ll, 2001 terrorist attacks has been expanded to permit virtual open-ended warfare against militant Islamic groups across the Muslim world.
War and The Authorization for Use of Military Force
The law, The Authorization for Use of Military Force, commonly referred to as A.U.M.F., provides congressional authorization to use military force only against nations groups or individuals, responsible for attacks.
While the enemy Congress was thinking about in Sept. 2011 was Al Qaeda and its Taliban host in Afghanistan, three presidents of both parties have since involved the 9/11 war authority to justify battle against Islamist militants in many other places.
As the 9/11 war enters its 17th year, questions about the scope and limits of presidential war-making powers are growing. President Trump is giving the Pentagon and the CIA broader latitude to pursue counter-terrorism drone strikes and commando raids away from traditional battlefields.
21st Century Presidents and War
Under the Obama-era rules, there was individualized high-level vetting of proposed strikes, and targets had to pose a specific threat, as individuals, to Americans.
Under the new Trump rules, the administration will instead approve a “persistent campaign of direct action” for various countries where Islamist militants are operating without higher level review of particular strikes, and targets may include any suspected member of a group deemed covered by the 9/11 war authorization.
Members of Congress seem largely unaware of what, in fact, the military is doing.
“I didn’t know there was a thousand troops in Niger,” Sen. Lindsay Graham (R-SC), a member of the Senate Armed Services Committee, declared. “This is an endless war without boundaries, no limitations on time and geography. You got to tell us more.”
What Mr. Trump thinks his war powers are is less than clear. He has, for example, suggested that he may abandon diplomatic efforts to curb North Korea’s testing of nuclear weapons and long-range missiles, and order an attack. But he and his administration have said nothing suggesting they would seek prior authorization from Congress and the U.N. Security Council.
On April 6, Mr. Trump ordered air strikes against Syrian government forces as punishment for using chemical weapons, without going to Congress or the U.N. for permission. His administration refused to answer questions about why it thought he had lawful authority to carry out such an attack, of war unilaterally, especially as a matter of international law.
War not declared by Congress
Congress never declared war in Iraq, nor was that in Korea or Vietnam, Panama, Haiti , Grenada or Somalia. In recent years, Congress has given away more authority than ever before over the nation’s foreign policy.
Conservatives who repeatedly speak of the necessity to consult the “original intent” of the Constitution seem less concerned with the war-making power, it seems, particularly when the executive is in the hands of those they consider their friend.
The Constitution reserves to Congress alone the power to declare war, despite its naming the president as commander-in-chief of the armed forces.
In Federalist No. 69, Alexander Hamilton notes that the president’s authority:
“…would be nominally the same as that of the king of Great Britain, but in substance much inferior to it…While that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the Constitution under consideration appertaining to the legislature.”
The older commentators and court decisions had no doubt about war powers. The views of Professor Charles W. Bacon in the once well known textbook. “The American Plan of Government,” are typical of the traditional understanding:
“The framers of the Constitution turned over an ample measure of the powers of war to Congress because Representatives and Senators are delegates of the People and States of the United States whose commercial interests must be staked upon the issue of every conflict. The People pay the bill. Therefore, their representatives in Congress are of right the proper persons to control military affairs.”
According to the decision in the case of Perkins v. Rogers,
“The war making power is, by the Constitution, vested in Congress and…the President has no power to declare war or conclude peace except as he may be empowered by Congress.”
In an early draft of the Constitution, the enabling phrase read “To make war” rather than “To declare war.” James Madison and Elbridge Gerry made the motion to change “make” to “declare.”
They explained that their purpose was to give “the Executive the power to repel sudden attacks”; and Gerry, in order to dispel any possible misunderstanding, declared that he “never expected to hear, in a republic, a motion to empower the Executive alone to declare war.”
There was no dissent from George Mason’s assertion that he
“was against giving the power of war to the Executive, because it is not safely to be trusted with it.”
Louis Fisher, a senior specialist in separation of powers at the Library of Congress, and author of “Presidential War Power,” states:
“From 1789 to 1950, Congress either declared or authorized all major wars. Members of Congress understood that the Constitution vests in Congress, not the president, the decision to take the country from a state of peace to a state of war. The last half-century has witnessed presidential wars, including President Truman going to war against North Korea and President Clinton using military force against Yugoslavia, with neither president seeking authority from Congress.”
Indeed, in more than 200 years, and more than 100 U.S. military engagements, Congress has formally declared only five wars the War of 1812, the Mexican-American War (1846), the Spanish-American War (1898), World War I (1917) and World War II (1941).
War Powers Act of 1973
Enactment of the War Powers Act in 1973 marked a major turning point in the constitutional role of Congress concerning the sending of U.S. armed forces to war. The act, generally considered the apex of congressional reassertion in national security, actually broadened the scope of independent presidential power.
The act allows the president to go to war without congressional authorization for at least 60 days but requires further authorization for at least 60 days but requires further authorization beyond that.
Boston University Professor Angelo Codevilla, a former U.S. Naval officer, says that,
“The War Powers Act is a cowardly measure on the part of members of Congress who wish to evade their unambiguous responsibility under the Constitution.
It conceded, among other things, that the president may start a war. in the position
He may not. Congress’ role should not be a passive, non-responsive role. It allows members of Congress to make an ex post facto judgment on a war, cheer if public opinion supports it or pile on if it opposes.
It is an invasion of the president’s powers as commander in chief.
The Constitution does not oblige him to report anything to Congress other than the State of the Union.”
Congress has largely abdicated its responsibility. In 1964, three days after an attack upon U.S. ships in the Gulf of Tonkin by North Vietnam, Congress enacted the Gulf of Tonkin Resolution giving President Lyndon Johnson the authority to use “all necessary measures” to “prevent further aggression.”
Setting no limits as to what the president could do.
President Johnson said, “It’s just like Grandma’s nightshirt. It covers everything.”
Early president’s explicitly acknowledged the exclusive war powers of Congress. President James Madison, was one of the principal framers of the Constitution. He sent a message to Congress on June 11, 1812.
In that letter he speaks of the depredations of British ships on American commerce in the Atlantic.
He referred the matter to Congress in these words:
“Whether the United States shall continue passive under these progressive usurpations and those accumulating wrongs, or opposing force to force in defense of their national rights, shall commit a just cause into the hands of the Almighty disposer of events, avoiding all connections which might entangle it in the contests or views of other powers, and preserving constant readiness to concur in an honor able re establishment of peace and friendship, is a solemn question which the Constitution wisely confides to the legislative department of Government.”
Daniel Webster, who served as Secretary of State in the early 1850s and was one of the great constitutional lawyers, wrote on July 14, 1851:
“In the first place, I have to say that the war making power in this Government rests entirely in Congress and that the President can authorize belligerent operations only in cases expressly provided for in the Constitution and the laws.”
In his concurring opinion in the case of Youngstown v. Sawyer, Justice Jackson, replying to the assertion of Solicitor General Perlman that the American troops in Korea “were sent into the field by an exercise of the president’s constitutional powers,” said:
“I cannot foresee all that it might entail if the Court should endorse the argument. Nothing in our Constitution is plainer than that declaration of war is entrusted to Congress.”
Conservatives and War
It is ironic that many of those so now promote the idea of the executive’s right to take the country to war without a congressional declaration call themselves conservatives.
Conservatives, traditionally, have been suspicious of unbridled executive power. The very suspicion of government power, it seems, is abandoned by many of those who previously considered it a very basis of their political philosophy.
They would do well to rediscover it before we are engulfed by constant conflict at the whim of the executive with the elected representatives of the people in the Congress having abandoned their constitutional role.