Tag Archives: War Powers Debate

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/

Afghanistan And The Pentagon Decades Long War With the Truth

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Image: “Military Times

WASHINGTON POST “THE AFGHANISTAN PAPERS A secret history of the war ” By Craig Whitlock

U.S. officials constantly said they were making progress. They were not, and they knew it.

The U.S. government tried to shield the identities of the vast majority of those interviewed for the project and conceal nearly all of their remarks. The Post won release of the documents under the Freedom of Information Act after a three-year legal battle.

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“In the interviews, more than 400 insiders offered unrestrained criticism of what went wrong in Afghanistan and how the United States became mired in nearly two decades of warfare.

With a bluntness rarely expressed in public, the interviews lay bare pent-up complaints, frustrations and confessions, along with second-guessing and backbiting.

Click any underlined text in the story to see the statement in the original document

“We were devoid of a fundamental understanding of Afghanistan — we didn’t know what we were doing,” Douglas Lute, a three-star Army general who served as the White House’s Afghan war czar during the Bush and Obama administrations, told government interviewers in 2015. He added: “What are we trying to do here? We didn’t have the foggiest notion of what we were undertaking.”

“If the American people knew the magnitude of this dysfunction . . . 2,400 lives lost,” Lute added, blaming the deaths of U.S. military personnel on bureaucratic breakdowns among Congress, the Pentagon and the State Department. “Who will say this was in vain?”

Since 2001, more than 775,000 U.S. troops have deployed to Afghanistan, many repeatedly. Of those, 2,300 died there and 20,589 were wounded in action, according to Defense Department figures.

The interviews, through an extensive array of voices, bring into sharp relief the core failings of the war that persist to this day. They underscore how three presidents — George W. Bush, Barack Obama and Donald Trump — and their military commanders have been unable to deliver on their promises to prevail in Afghanistan.”

[MORE] https://www.washingtonpost.com/graphics/2019/investigations/afghanistan-papers/afghanistan-war-confidential-documents/

Two Decades of War Have Eroded the Morale of America’s Troops

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Image:  USO – Hampton Roads and Central Virginia

“THE ATLANTIC”


“The military can’t set its own goals, can’t determine its own budget or which ideals it fights and dies for, and can’t decide how its losses will be honored, dishonored, or appropriated after the fact. 

So while America as a whole chooses to express its love for its military in gooey, substance-free displays, our military waits, perhaps hopelessly, for a coherent national policy that takes the country’s wars seriously.”
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“If the courage of young men and women in battle truly does depend on the nature and quality of our civic society, we should be very worried. We should expect to see a sickness spreading from our public life and into the hearts of the men and women who continue to risk their lives on behalf of a distracted nation. 

And when we look closely, that is exactly what we see: a sickness that all the ritualistic displays of support for our troops at sporting events and Veterans Day celebrations, and in the halls of Congress, can’t cure.


Our military is a major part of who we are as a country; it is the force that has undergirded the post–World War II international order. Being an American means being deeply implicated in that, for good or for ill. But as Wellman’s response to his war suggests, the solution to our current dead end doesn’t lie within the military itself. 


The military can’t set its own goals, can’t determine its own budget or which ideals it fights and dies for, and can’t decide how its losses will be honored, dishonored, or appropriated after the fact. So while America as a whole chooses to express its love for its military in gooey, substance-free displays, our military waits, perhaps hopelessly, for a coherent national policy that takes the country’s wars seriously.


What would such a thing look like?


It would probably look like rescinding the open-ended Authorization for the Use of Military Force and making the president regularly go before Congress to explain where and why he was putting troops in harm’s way, what resources the mission required, and what the terms of success were. 
It would look like every member of Congress carrying out his or her constitutionally mandated duty to provide oversight of our military adventures by debating and then voting on that plan. 


It would look like average Americans taking part in that debate, and scorning anyone who tried to tell them they couldn’t. It would look like average Americans rolling their eyes in disgust when our leaders tell us we’re not at war while American troops are risking their lives overseas, or claim that Americans must support the wars their country engages in if they want to support the troops, or when a press secretary argues that anyone who questions the success of a military raid in which a service member died “owes an apology” to that fallen soldier.

 
It would look like our politicians letting the fallen rest in peace, rather than propping up their corpses for political cover. And when service members die overseas in unexpected places, such as the four killed in Niger last year, it would look like us eschewing the easy symbolic debates about whether our president is disrespecting our troops by inartfully offering condolences or whether liberals are disrespecting our troops by seizing upon those inartful condolences for political gain. It would look like us instead having a longer and harder conversation about the mission we are asking soldiers to perform, and whether we are doing them the honor of making sure it’s achievable.


In short, it would look like Americans as a whole doling out a lot fewer cheap, sentimental displays of love for our troops, and doubling down on something closer to Gunny Maxwell’s “tough love”—a love that means zeroing in on our country’s faults and failures.


if we don’t, then at some point the bottom will drop out. Morale is a hard thing to measure, but plenty of indicators suggest that it’s been falling. Ninety-one percent of troops called their quality of life good or excellent in a survey done by the Military Times back in 2009, when the downturn in violence in Iraq and a new strategy in Afghanistan still held out a promise of victory; by 2014 that had fallen to only 56 percent, with intentions to reenlist dropping from 72 to 63 percent. 


Recruiting is also down. For the past three decades, the military has generally accepted about 60 percent of applicants. In recent years that figure has been closer to 70 percent and is climbing. And the active-duty force is getting worn out. When I was in, I was impressed to meet guys with five deployments under their belts. Now I meet guys who have done eight, or nine, or 10. 


The situation is particularly bad within the Special Operations community. Last year Special Operations Command deployed troops to 149 countries; some operators cycled in and out of deployments at what General Raymond Thomas called the “unsustainable” pace of six months overseas, six months at home. I recently met an Army ranger who’d done seven deployments. He was on a stateside duty, and told me that when he and his wife realized that he’d be home for two years straight, it freaked them out a bit. They loved each other, and had three kids, but had never spent two solid years together without one of them going on a deployment. This is too much to ask, especially for ongoing wars with no end in sight. 


Theresa Whelan, the principal deputy assistant secretary of defense for homeland defense and global security, recently told the House Armed Services Committee that the Special Operations community has “had to eat our young … [and] mortgaged our future” to keep going.


Day by day, that mortgaged future creeps closer. When it arrives, who is going to sign up for a vague and hopeless mission? How do you motivate men and women to fight and die for a cause many of them don’t believe in, and whose purpose they can’t articulate? What happens to the bonds between men and women in combat, and to the bonds between soldiers and the citizenry for whom they fight, when we fail as a nation to treat our wars as a collective responsibility, rather than the special mission of a self-selected few?


Without a political leadership that articulates and argues for a mission and objective worth dying for, it’s no surprise that soldiers sometimes stop caring about the mission altogether. A sergeant who deployed to the Korengal Valley, in Afghanistan, told me that by the end of his deployment, he had purposely adopted a defensive posture, sacrificing mission for safety at every opportunity he could. 


This is reminiscent of what one officer said of the later stages of the Vietnam War: “The gung-ho attitude that made our soldiers so effective in 1966, ’67, was replaced by the will to survive.” It’s not that those troops lacked courage, but that the ends shifted. “We fought for each other,” I’ve heard plenty of veterans claim about their time in service, and no wonder. 
If your country won’t even resource the wars with what its own generals say is necessary for long-term success, what else is there to fight for? But if you think the mission your country keeps sending you on is pointless or impossible and that you’re only deploying to protect your brothers and sisters in arms from danger, then it’s not the Taliban or al-Qaeda or isis that’s trying to kill you, it’s America.”


“The Atlantic” – Two Decades of War Have Eroded the Morale of America’s Troops

Unconstitutional Presidential Wars

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Unconstitutional Presidential Wars

(Photo: U.S. Army / Spc. Anthony Zendejas IV)

“THE PROJECT ON GOVERNMENT OVERSIGHT (POGO)”

“Congress allowed President Truman to set a troubling precedent that subsequent presidents have used to continue to improperly expand their war powers.

The current war powers debate often misses how Congress has repeatedly allowed the executive branch to improperly infringe upon its authority.”


“The Framers rejected the British model that placed all powers over external affairs, including going to war, with the executive. They vested the war power in Congress, recognizing that the President could “repel sudden attacks.” In Federalist No. 4, John Jay warned about executive wars, stating that “nations in general will make war whenever they have a prospect of getting any thing by it; nay, absolute monarchs will often make war when their nations are to get nothing by it,” engaging in wars “not sanctified by justice or the voice and interests of his people.”

The United States followed that constitutional system from 1789 through World War II. Since that time, Presidents Truman, Clinton, and Obama have engaged in unconstitutional wars, deciding to seek authority not from Congress but instead from the U.N. Security Council or from NATO allies. It is sometimes argued that when presidents receive a resolution of support from the Security Council they satisfy international law. They do not, however, satisfy the U.S. Constitution. The Senate through the treaty process, such as agreeing to the U.N. Charter, may not transfer Article I powers of Congress to international or regional organizations. Presidential military initiatives after World War II have violated the rule of law, the principle of self-government, and the system of checks and balances.

In 1945, when Senators were debating the U.N. Charter, President Truman wired a note to Senator Kenneth McKellar (D-TN). He pledged that whenever the United States considered resolutions to use American troops in a U.N. military action, “it will be my purpose to ask the Congress for appropriate legislation to approve them.” Statutory authority would be needed from both houses of Congress. With that understanding, the Senate approved the U.N. Charter by a vote of 89 to 1.

It was then necessary for Congress to pass legislation to decide how the United States would agree to U.N. military actions. Under the Charter, all U.N. members would make available to the Security Council “on its call and in accordance with a special agreement or agreements,” armed forces and other assistance. Those agreements “shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.” Congress had to decide how to articulate and honor those constitutional processes.

That congressional effort is expressed in the U.N. Participation Act, enacted in December 1945. The statute provides that agreements for the use of military force “shall be subject to the approval of the Congress by appropriate Act or joint resolution.” Advance congressional approval would be needed for involving U.S. forces in a U.N. military action. Truman signed this bill without expressing any constitutional or policy objections.

In 1950, by involving U.S. troops in a U.N. military action against North Korea, Truman violated the U.N. Participation Act, the U.S. Constitution, and his own personal pledge to Senator McKellar. At a news conference on June 29, a reporter asked him if the country was at war. He answered: “We are not at war.” Asked whether it would be more correct to call the operation “a police action” under the United Nations, he replied: “That is exactly what it amounts to.” As would be the case for subsequent Presidents, Truman decided to play games with words. At Senate hearings in June 1951, Secretary of State Dean Acheson conceded the obvious by admitting “in the usual sense of the word there is a war.” Federal and state courts regularly agreed that hostilities in Korea amounted to war.

Following Truman’s initiative, President Bill Clinton sought “authority” from the Security Council to use military force in Haiti and Bosnia. Unable to obtain U.N. authority to take military action in Kosovo, he reached out to NATO allies for support. At no time did he seek authority from Congress for those actions. His actions violated the Constitution.

On March 21, 2011, President Barack Obama reported to Congress that U.S. forces operating under a U.N. resolution had begun a series of strikes against Libyan air defense systems and military airfields “for the purposes of preparing a no-fly zone.” Those strikes, he said, “will be limited in their nature, duration, and scope.” The term “no-fly zone” might seem to some as so restrained that it would not reach the level of war. However, those military actions require destroying the capacity of a country to act against the United States and its allies. Regardless of how U.S. officials sought to downplay a no-fly zone, using military force against another country that has not threatened the United States is, as former Secretary of Defense Robert Gates said in his book “Duty,” published in 2015, an “act of war.” Very straight and important talk, respectful of constitutional values.

A memo released by the Office of Legal Counsel on April 1, 2011, chose to engage in various word games. It concluded that the military actions against Libya did not constitute “war” because of the limited “nature, scope, and duration” of the planned military operations. Although Obama anticipated that military actions would conclude “in a matter of days and not a matter of weeks,” they continued for seven months.”

https://www.pogo.org/analysis/2018/08/unconstitutional-presidential-wars/