Tag Archives: Article One of Constitution

Reclaiming Congress’s War Powers

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An American flag lines the inside of a U.S. Soldier’s helmet at Forward Operating Base Azim Jan Karez in Kandahar, Afghanistan, Dec. 16, 2012. (Photo: DOD / D. Myles Cullen)

“THE PROJECT ON GOVERNMENT OVERSIGHT (POGO) “

[James] “Madison wrote, “In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”

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“Article I of the Constitution gives Congress the sole power to declare war, raise and fund an army and navy, and “make Rules for the Government and Regulation of the land and naval Forces.” But the United States has been at war continuously since September 18, 2001, and Congress last voted to authorize force in 2002. Children born that year will soon be eligible to serve in the military.

There are signs that Congress is trying to reassert its constitutional authority in the wake of the United States’ killing of Iranian general Qassem Soleimani this January in Iraq. On February 13, the Senate passed a resolution intended to block war with Iran, by a bipartisan vote of 55-45. The House of Representatives passed a similar measure soon after the strike against Soleimani. More recently, the House voted to repeal the 2002 Iraq war authorization (which President Donald Trump invoked as a justification for the Soleimani strike), and to forbid the use of federal funds for an attack on Iran.

Congress’s overdue efforts to reclaim its authority over the use of military force are very welcome. But they’re unlikely to be effective in restraining the executive in the short run. Trump has threatened to veto these measures, and none has passed with the two-thirds majority required for an override.

It is rare for Congress to unite across party lines by a large enough majority to override a presidential veto. The framers of the Constitution did not intend to give the president unilateral authority to start and expand wars unless two-thirds of Congress stopped him. James Madison warned in 1793 that presidents would inevitably be tempted to start, expand, and prolong wars: “War is in fact the true nurse of executive aggrandizement. In war a physical force is to be created, and it is the executive will which is to direct it. In war the public treasures are to be unlocked, and it is the executive hand which is to dispense them.” Because of this, Madison wrote, “In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”

Nearly 50 years ago, in 1973, Congress did enact a law designed to prevent “prolonged engagement in undeclared, Presidential war.” The War Powers Resolution states that the president can only deploy the military into actual or imminent hostilities under “(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” The resolution requires troops deployed without statutory authorization to be removed within 60 days, or immediately upon a vote by a majority of both the House and the Senate.

The vote requiring the removal of troops from a conflict was originally supposed to take the form of a “concurrent resolution,” which is not subject to a veto by the president. But a 1983 Supreme Court decision, INS v. Chadha, held that “legislative vetoes” of executive action are unconstitutional.

The executive branch has weakened the limits imposed by the War Powers Resolution over time.

Perhaps most significant in recent years has been the executive branch’s contorted interpretation of existing authorizations to use force to cover new conflicts—in some cases, to cover conflicts with groups not even in existence at the time the authorizations of force were adopted.

Just days after the September 11 terrorist attacks, Congress passed an authorization for use of military force, known as an “AUMF,” permitting the use of force “against those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” The 2001 authorization, however, has been interpreted so broadly since it was adopted that presidents have invoked it to conduct military operations in at least 19 countries, including at least seven where operations are ongoing, according to the Congressional Research Service.

Congress last passed an AUMF in October 2002, when it authorized President George W. Bush to go to war with Iraq. The U.S. government overthrew Saddam Hussein’s government shortly after the war began, and held a ceremony marking the official end of the conflict in 2011. But the Trump administration has threatened to veto the repeal of the 2002 war authorization, and has made the absurd claim that the 2002 war authorization has “long been understood to authorize the use of force” to address “threats directed by Iran.”

In other cases, presidents have claimed that their military actions fell short of war, or of “hostilities” under the War Powers Resolution. The Trump administration used this justification for its military strike against the Syrian government in 2018 and the Obama administration made the same claim when it intervened in Libya in 2011.

It will not be easy for Congress to stop these unauthorized uses of force and reassert its constitutional authority. But a growing number of members of Congress from across the political spectrum recognize the necessity for action. The Project On Government Oversight (POGO) recommends that, beyond votes addressing specific uses of force, Congress reform the War Powers Resolution itself to close the loopholes that have prevented it from fulfilling its original purpose.

Reforms should include:

Requiring that war authorizations include proper nouns and end dates

The executive branch’s expansion of the post-September 11 war authorization to include “associated forces” of al-Qaida that did not exist at the time of the attacks demonstrates the need for greater specificity. Any resolution authorizing the use of military force should include a sunset date, and specify the name of the enemy (whether it is a foreign state or a terrorist group) and geographical locations where the military may use force. Existing authorizations, including the 2001 and 2002 AUMFs, should also be repealed or given an expiration date.

While it is not possible to prevent a future Congress from passing a vague authorization, Congress could provide for expedited consideration of resolutions to authorize force only if they include these specifics.

Defining “hostilities”

The 1973 War Powers Resolution did not define “hostilities,” one of its key terms. For decades, presidents have used that omission to argue that military action did not qualify. In 2011, the Obama administration argued that the United States’ involvement in a military campaign against Muammar Gaddafi’s regime in Libya—which lasted over six months, included a U.S. bombing campaign and the deployment of 11 naval ships, and ended in Gaddafi’s violent overthrow and death—did not amount to “hostilities.” In order to close this loophole, Congress should define “hostilities” to include, at a minimum, “armed conflict” or “clear and present danger of armed conflict,” and should make clear that armed conflict includes drone warfare and other situations where U.S. personnel take deadly action even where they face limited risk of casualties.

Requiring increased transparency from the executive branch about all uses of force

The executive branch has not only used the September 2001 AUMF to justify military force against an increasing number of terrorist organizations in an increasing number of countries, but it has also refused to publicly acknowledge many of these actions. In 2013, the Pentagon told members of Congress that the full list of al-Qaida “associated forces” with whom the U.S. was at war was classified. The secrecy has been even greater with respect to CIA paramilitary airstrikes in Pakistan and Yemen. For years, the executive branch has withheld crucial information about the drone campaign from most members of Congress. A new war powers resolution should include requirements for meaningful, prompt consultation with Congress whenever U.S. government employees are involved in armed conflict, and public notice with only very narrow exceptions.

Creating a mechanism for judicial review

Efforts to enforce the 1973 War Powers Resolution in court have not been successful, but Congress needs to keep trying. Unless the courts step in to enforce legal limits on the president’s commander-in-chief power, the Office of Legal Counsel and other executive branch lawyers will have the last word. The Office of Legal Counsel, the entity within the Department of Justice that offers legal advice to the executive branch, has repeatedly concluded that the president may use military force without congressional authorization if doing so serves the United States’ national interest—a test that “provides no meaningful constraint on presidential power,” in the words of former office head Jack Goldsmith and law professor Curtis Bradley. Congress should explicitly authorize the speaker of the House, the Senate majority leader, or the foreign affairs committee of either body to bring suit on its behalf, and instruct the courts that the executive’s compliance with a new war powers resolution is not a political question and thus is subject to judicial review.”

https://www.pogo.org/analysis/2020/02/recommendations-for-reclaiming-congress-war-powers/

One Year Into the War That Congress Won’t Declare

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Declaring War

“DEFENSE ONE”

“For the past year, the United States has been in a much wider conflict with the non-state that calls itself the Islamic State.

This war is an ongoing violation of the Constitution, one of the most severe of the 21st century.  The administration claims it already has authority for the intervention, in the Authorization for the Use of Military Force passed in 2001 [after 911].

Congress is abdicating an important role. Congress always prefers to remain mum about a war until it sees whether it’s going well, but the Constitution doesn’t have a “wait for the polls” clause.

We have put together a rickety, complex, and partly secret “alliance” with a number of seemingly incompatible players in the region, ranging from Britain and France to Turkey, Jordan, Saudi Arabia, and, under cover, at least the tacit cooperation of Iran and even Syria. We are training “moderate” Syrian rebels and our troops are advising and training the Iraqi Army.

The operation has spread from Iraq to Syria and perhaps now Egypt. It is taking place amidst—and arguably exacerbating—a refugee crisis that is engulfing not just the region but the Western European countries. And General Raymond Odierno, who retired last week as the Army chief of staff, said on his way out that “if we find in the next several months that we aren’t making progress, we should absolutely consider embedding some soldiers (in Iraq).”

Now, administration officials say, the Islamic State is (as one anonymously put it) “the true inheritor of Usama bin Laden’s legacy.” In other words, the Islamic State is the cow with the crumpled horn, and if you follow the chain back far enough, you eventually get to the House that Jack Built.  That chain may be faulty or even fanciful; but this analysis at least complies with the forms.

The administration has requested specific authorization for the effort to combat the Islamic State, submitting a complex draft resolution that authorizes the president to use force against the Islamic State and “associated forces”—but that also forbids the use of U.S. ground troops and requires reauthorization after three years.

The draft is plainly aimed at preventing the war from spreading out of control—and, at least in part, at limiting the options of Obama’s successor. For this reason among others, the Republican leadership has balked at passing it, preferring something far more open ended and sweeping. Senator Marco Rubio, for example, reacted to the draft this way: “I would say that there is a pretty simple authorization he could ask for and it would read one sentence: ‘We authorize the president to defeat and destroy ISIL.’ Period.” Senator Lindsey Graham said the limitations would “harm the war effort.” Both of them imagine they may be using a future authorization, and want it to be as wide as possible. But to Obama, an over-broad resolution would be the nightmare of permanent war that he has tried to escape for the past six years.

Some Democrats, meanwhile, believe that even Obama’s language is too broad. So we have stalemate—a stalemate the administration can live with. It has its claim of authority already in place, and it’s unwilling to rock the military boat while a vote is pending on the Iran nuclear deal.

The scandal in this is that almost nobody is really working to resolve the impasse. Senators Timothy Kaine of Virginia, a Democrat, and Jeff Flake of Arizona, a Republican, have submitted a draft which would provide limited authorization, but their colleagues aren’t beating down their doors to cosponsor the bill. Kaine recently told The Hill that the Senate “has hardly had more than 90 minutes of discussion about this” since the Obama draft arrived.

The administration has at least done the minimum. And if the administration isn’t pushing, it’s at least in part because this Congress has demonstrated that it will discard settled norms in foreign policy—witness the genuinely shocking attempt to sabotage the Iran deal by writing to the Iranian leadership while negotiations were still pending. Right now, that deal is the administration’s top priority.

Congress is abdicating an important role. Congress always prefers to remain mum about a war until it sees whether it’s going well, but the Constitution doesn’t have a “wait for the polls” clause.

But this war is already too wide to be proceed any further without a serious discussion of the aims and dangers of the effort. American soldiers, whether they are “advisers” or “embeds” or anything else, are at risk, and beyond that, international stability is at stake. There are institutional reasons why the two branches are content to make war-and-peace decisions in silence. But we the people don’t have to accept that. We can insist that Congress take this matter up, and we can also insist that they treat this life-and-death issue as if they were grown-ups.”

http://www.defenseone.com/politics/2015/08/one-year-war-congress-wont-declare/119369/?oref=defenseone_today_nl