Presidential Power to Use Military Overseas

Many posts have discussed war powers and the US military.

Brian Finucane at Just Security:

On Sept. 2nd, the Trump administration announced what it described as a “lethal strike” against an alleged drug smuggling vessel in the Caribbean. In a post on social media accompanied with a video of the strike, President Donald Trump stated that the attack was “against positively identified Tren de Aragua Narcoterrorists.” Trump also noted that Tren de Aragua had previously been designated as a foreign terrorist organization (FTO). The social media post also asserted that the strike had occurred in international waters and killed “11 terrorists.”

Although the facts are still emerging, the Trump administration’s extraordinary lethal attack on this purported smuggling vessel – and its vow that the strike was a start of a campaign – raise a number of significant potential legal issues. And even apart from these legal concerns, the strike constitutes a deeply troubling gratuitous use of the military that resulted in the unnecessary killing of 11 individuals.

In 2019, Navy SEALs were on a secret, possibly illegal mission to plant a listening device on the dictator of North Korea. Dave Philipps and Matthew Cole at NYT:

The mission had the potential to provide the United States with a stream of valuable intelligence. But it meant putting American commandos on North Korean soil — a move that, if detected, not only could sink negotiations but also could lead to a hostage crisis or an escalating conflict with a nuclear-armed foe.

It was so risky that it required the president’s direct approval.

For the operation, the military chose SEAL Team 6’s Red Squadron — the same unit that killed Osama bin Laden. The SEALs rehearsed for months, aware that every move needed to be perfect. But when they reached what they thought was a deserted shore that night, wearing black wet suits and night-vision goggles, the mission swiftly unraveled.

A North Korean boat appeared out of the dark. Flashlights from the bow swept over the water. Fearing that they had been spotted, the SEALs opened fire. Within seconds, everyone on the North Korean boat was dead.

The SEALs retreated into the sea without planting the listening device.

The 2019 operation has never been publicly acknowledged, or even hinted at, by the United States or North Korea. The details remain classified and are being reported here for the first time. The Trump administration did not notify key members of Congress who oversee intelligence operations, before or after the mission. The lack of notification may have violated the law.

...

In 2019, Mr. Trump was making a personalized overture to Mr. Kim, in search of a breakthrough that had eluded prior presidents. But those talks collapsed, and North Korea’s nuclear program accelerated. The U.S. government estimates that North Korea now has roughly 50 nuclear weapons and missiles that can reach the West Coast. Mr. Kim has pledged to keep expanding his nuclear program “exponentially” to deter what he calls U.S. provocations

Charlie Savage at NYT:

Should the intelligence committees have been told?

That turns in part on whether the operation was undertaken under military legal authorities, found in Title 10 of the United States Code, or under intelligence authorities, found in Title 50.

A major difference is that Title 50 allows so-called covert operations, in which the United States government intends to conceal its role and deny any involvement if something comes to light. Typically those are conducted by the C.I.A., but sometimes military forces are temporarily put under C.I.A. control to carry out covert activities.

If the government is going to carry out a covert activity, Title 50 generally requires presidents to first make a written “finding” and inform the intelligence committees within 48 hours. Another part of the statute requires notice of “any significant undertaking pursuant to a previously approved finding,” but does not specify a deadline.

Other provisions in Title 50 require the executive branch to provide reports to the intelligence committees that keep them “fully and currently informed” about all intelligence activities — whether covert or not, and including any “significant failures” — no matter which agency or department conducts them.

Iran and War Powers

Many posts have discussed war powers and the US military.

Gary Schmitt at AEI:

As a constitutional matter, was President Trump required to have congressional authorization before he militarily struck Iran’s nuclear facilities? The answer is, “no.”

The Congress’s authority “to declare war”—found in Article I, sec. 8 of the Constitution—is not the same as “to make war.” As deliberations in the Constitutional Convention make clear, the change in the draft constitution’s text from “make” to “declare” was intended to give the president the authority to deal with obvious pending threats and situations in which the United States was already under attack. In short, the power to declare war was the authority to move the country formally from a state of peace to that of war, with all the domestic and international legal ramifications that follow from that declaration.

The key point is that Iran’s government and Iranian-directed proxies have been waging unconventional war on the United States for decades. ...

In 2020, after President Trump ordered the killing of Qassem Soleimani, the Iranian general in charge of Iran’s Islamic Revolutionary Guard Corps’ Quds Force, the White House and the Justice Department issued constitutional justifications for the action. As lawyers are wont to do, both had a bit of the kitchen-sink character, with differing legal justifications tossed in. The least credible was suggesting the 2002 Authorization for Use of Military Force Against Iraq was grounds for eliminating Soleimani. The most credible was that he had led the Iranian force and its proxies in planning and executing attacks on American military personnel and showed no signs of stopping. As a matter of self-defense, the president’s order to kill him was constitutionally justified.

But rather than stick with this straightforward justification, both the White House and the Justice Department slip in grounds for the president unilaterally employing the military offensively that are of a more recent (and problematic) vintage. The White House memorandum states the president not only has the authority to protect Americans from imminent attack but also “to protect important national interests.” In turn, the Department of Justice document argues that the president was not required to seek congressional approval because the action taken would not “bring the Nation into the kind of protected conflict that would rise to the level of war”—and hence, fell outside of the Congress’s prerogative of declaring war. Both arguments are found in the April 2011 opinion issued by the Office of Legal Counsel laying out the constitutional grounds for President Obama decision to order the American air campaign over Libya.

The Alien Enemies Act, Explained

Don Wolfensberger at The Hill:

Two things should be understood about the Alien Enemies Act. First, it can only be operable when there is a “declared war between the United States and any foreign nation or government.” The act was not triggered when enacted because the U.S. maintained its neutrality throughout the war between Britain and France.

Second, the legislation authorized the president to “make public proclamation” of his intent to apprehend, restrain, secure and remove foreign male nationals aged 14 and over (since amended in 1918 to include women) as enemy aliens, whether or not they were present in the U.S. legally.

The act has been invoked only three times over the last two- and a quarter centuries: in the War of 1812 against Britain, in World War I and in World War II — the latter being the last war declared by Congress.

The Alien Enemies Act was used to during World War II to arrest and detain in internment camps or military facilities more than 30,000 suspected enemy aliens in the U.S. from Italy and Nazi Germany. The more outrageous occurrence was the internment of over 100,000 ethnic Japanese. But approximately two-thirds of these were U.S. citizens, who therefore had to be detained under different legal authorities than the Alien Enemies Act.

Even if Trump’s threat to utilize the 1798 law to round-up and either detain or deport immigrants, the task would be a hugely costly, litigious and prolonged. Moreover, he would be challenged in the courts that the U.S. is not now engaged in a declared war and the president has no authority under the Constitution to unilaterally declare war on other nations.

 
Several experts have pointed out that the president already has authority to expel undocumented aliens, war or no war, and need not invoke the Alien Enemies Act. So why would he want to jump through all the extra hoops? And even then, it still comes down to the bottom-line question: “Where’s the money?”

Use of Military Force Overseas

Some argue that President Biden should have sought congressional approval before the recent  strikes in Yemen.  Tom Nichols disagrees:

Such objections have been lodged before about various U.S. operations around the world, ordered by presidents of both parties. They are rooted in the inherent tension in the Constitution between Article I, Section 8, which reserves to Congress the power to declare war, and Article II, Section 2, which designates the president as the commander in chief of the armed forces. Congress decides when a state of war exists between the United States and a foreign adversary; the president otherwise directs the actions of the U.S. military.

But does the president need to ask Congress every time he directs the armed forces of the United States to engage in violence? Jayapal seems to think so: Article I, she posted on X yesterday, “requires that military action be authorized by Congress.” Khanna was more specific, saying that this particular action needed to be approved—but that’s a small distinction without much of a difference.

Article I says none of these things, and in any case, America has not actually declared war on anyone since the spring of 1942. (This is a great bar bet, by the way: Most people will guess that the last U.S. declaration of war took place in 1941, after the Japanese attacked Pearl Harbor, but declarations against the minor Axis members Bulgaria, Hungary, and Romania took place six months later.)

Even Korea and Vietnam were not declared wars; rather, American presidents ordered troops into combat while relying on the self-defense provisions of the United Nations charter, as well as enforcing our legal obligations under treaties of alliance. Likewise, presidents have argued that acting in self-defense or to prevent further harm to ourselves or our friends does not require congressional approval.

Since 1798, there have been hundreds of instances in which the United States has used military forces abroad in situations of military conflict or potential conflict to protect U.S. citizens or promote U.S. interests.

Biden on Executive Power

Miles's Law: where you stand depends on where you sit.  

Charlie Savage,   Maggie Haberman and Jonathan Swan at NYT:

If he is elected to a second term, President Biden pledged that he will go to Congress to start any major war but said he believed he was empowered “to direct limited U.S. military operations abroad” without such approval when such strikes served critical American interests.

“As president, I have taken great care to ensure that military actions carried out under my command comply with this constitutional framework and that my administration consults with Congress to the greatest extent possible,” he wrote in response to a New York Times survey of presidential candidates about executive power.

“I will continue to rigorously apply this framework to any potential actions in the future,” he added.

The reply stood in contrast to his answer in 2007, when he was also running for president and, as a senator, adopted a narrower view: “The Constitution is clear: Except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force.”

Not just war powers. 

In 2019, for example, Mr. Biden said that if elected, he would order the Justice Department to review and potentially replace a legal policy memo that says sitting presidents are temporarily immune from indictment. He strongly criticized the department’s interpretation of the Constitution, which limited the special counsel investigating the Trump campaign’s ties to Russia and Mr. Trump’s attempts to impede that inquiry, Robert S. Mueller III.

But Mr. Biden never followed through on that pledge. He is now protected himself by the Justice Department’s theory since a special counsel, Robert Hur, is investigating how several classified documents were in his possession when he left the vice presidency.

Interpreting Curtiss-Wright

At R Street, Louis Fisher writes about United States v. Curtiss-Wright Corp., 299 U.S. 304 

Justice Sutherland’s major error in CurtissWright was to completely misrepresent and misinterpret a speech that John Marshall delivered in 1800 as a member of the House of Representatives. With Thomas Jefferson in that election year attempting to defeat President John Adams, Jeffersonians in the House urged that Adams be either impeached or censured for turning over to England an individual charged with murder. Jeffersonians thought the individual was an American under the name of Jonathan Robbins, but in fact he was Thomas Nash, a native Irishman. 

In his speech, Marshall rejected the move for impeachment or censure by explaining that President Adams was not acting in some illegal or unconstitutional way. Instead, he was carrying out a provision of the Jay Treaty with England that authorized each country to deliver up to each other any person charged with murder or forgery. Nash, being British, would be turned over to England for trial. President Adams was not acting unilaterally with regard to external affairs or claiming some type of independent executive power. He was fulfilling his Article II, Section 3, authority to take care that the laws, including treaties, be faithfully executed. In the course of delivering his speech, Marshall included this sentence: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” The phrase “sole organ” is susceptible to different interpretations. “Sole” means exclusive but what is “organ?” Is it merely the president’s duty to communicate to other nations U.S. policy established by the elected branches? Reading the entire speech makes clear that Marshall intended that meaning. He was merely defending Adams for carrying out the extradition provision of the Jay Treaty. After he completed his speech, the Jeffersonians considered his argument so well reasoned that they dropped efforts to either impeach or censure Adams

War Powers: Consultation

From CRS:

Section 3 of the War Powers Resolution requires the President "in every possible instance" to consult with Congress before introducing U.S. Armed Forces into situations of hostilities and imminent hostilities, and to continue consultations as long as the armed forces remain in such situations. The House report elaborated:

A considerable amount of attention was given to the definition of consultation. Rejected was the notion that consultation should be synonymous with merely being informed. Rather, consultation in this provision means that a decision is pending on a problem and that Members of Congress are being asked by the President for their advice and opinions and, in appropriate circumstances, their approval of action contemplated. Furthermore, for consultation to be meaningful, the President himself must participate and all information relevant to the situation must be made available.1

The House version specifically called for consultation between the President and the leadership and appropriate committees. This was changed to less specific wording in conference, however, in order to provide more flexibility.

Use of Armed Forces Abroad

From the Federation of American Scientists:

There are only nineteen years since 1798 when the U.S. did not have armed forces engaged in military operations abroad, according to an updated tally from the Congressional Research Service. See Instances of Use of United States Armed Forces Abroad, 1798-2019, updated July 17, 2019.

The most recent year in which U.S. military forces were not used in a foreign conflict was 1979, according to the CRS. The CRS account does not reflect covert action, disaster relief, or training activities involving U.S. forces abroad.

Though there have only been 11 formal declarations of war, there have been hundreds of military actions including “extended military engagements that might be considered undeclared wars.”

“These cases vary greatly in size of operation, legal authorization, and significance,” CRS said. “Some actions were of short duration, and some lasted a number of years. In some examples, a military officer acted without authorization; some actions were conducted solely under the President’s powers as Chief Executive or Commander in Chief; other instances were authorized by Congress in some fashion.”

Twelve

At Brookings, Michael O'Hanlon writes:

A president of the United States can, in theory, launch nuclear war by personal decision—without any checks or balances. Whether we really think any of the candidates for president in 2016 would cavalierly start a nuclear war, the bombastic and bizarre character of much of this year’s electoral debate should make us take this question seriously. Someday, the United States really could have a mentally ill president who chose to do the unthinkable. The odds are low, but we should seek to make them even lower, given the stakes at hand. Because it looks like humankind will be stuck with the nuclear bomb for many decades (if not centuries) to come, moreover, the solution to this problem cannot be simply to get rid of all existing nuclear arsenals. We need a more immediate answer.

To be sure, a president is required by the War Powers Act of 1973 to seek congressional approval for any military action within 60 days of its inception. But most presidents consider that act unconstitutional. In any event, a nuclear war could easily devastate the planet within just days or hours—long before the 60-day stipulation would be binding. Even if a president had obtained congressional approval for a war that began using only conventional weapons, no provisions of the War Powers Act would require subsequent congressional action prior to nuclear escalation.

In short: A president could push the button all by himself or herself, legally- and constitutionally-speaking. Physically, military personnel would need to carry out the strike of course. They could choose not to, perhaps at the instruction of the secretary of defense or the four-star officer leading Strategic Command—who together constitute the chain of command between the president and the trigger-pullers. But any military officer ignoring a presidential order would be in open insubordination, subject to dismissal and court martial.

Only twelve Americans have ever held this power:

1. Truman
2. Eisenhower
3. Kennedy
4. Johnson
5. Nixon
6. Ford
7. Carter
8. Reagan
9. GHW Bush
10. Clinton
11. GW Bush
12. Obama 

Every one had flaws and made mistakes.  Some did very bad things.  But all twelve had the good sense not to launch a nuclear attack.  Will our luck run out with number 13?

Daisy Spot, 2016 ed.

Perhaps the most famous TV spot of all time is the 1964 "Daisy Spot"  in which LBJ's campaign hinted (without overtly saying) that Barry Goldwater would start a nuclear war.  (Another spot was more direct.) Democratic Super PAC Priorities USA is even more blunt about Trump.

No Authorization for the Use of Military Force

James Arkin reports at RealClearPolitics:

The war against ISIS began with airstrikes a year ago this week and lawmakers have spent significant time in the last 12 months debating the strategy and, in many cases, criticizing the way the Obama administration is conducting the fight. But one thing members of Congress have yet to do is have a vote – or even a substantive debate – over authorizing the military campaign.

Instead, President Obama has relied on past authorizations for the use of military force (AUMFs) against al-Qaeda in 2001 and in Iraq in 2002 as the legal justification for the current campaign against the terrorist organization operating mostly in Iraq and Syria. Despite the White House’s insistence, lawmakers are split on whether they agree. Some believe the president is operating within a legitimate legal framework. Others don’t.

...
Boehner, who has been a harsh critic of Obama’s strategy in fighting ISIS, was also staunchly against the president’s submission of a force authorization to Congress in February. In May, he called on Obama to “start over” and submit another draft to Congress.

The speaker’s argument is that the February draft is too narrow, restricting the commander-in-chief’s ability to wage the fight. Cory Fritz, a spokesman for Boehner, told RCP, “We have only one commander-in-chief at a time. It is unconscionable that he has offered up a plan that undermines America's ability to win his fight.”

Ultimately, most parties agreed it’s unlikely this issue will be hashed out, either in the near future because of the Iran nuclear debate or into the fall because of continuing divisions and calendar issues. But whether or not progress is made, don’t expect the group of lawmakers pushing for this debate to shy away from it.

Planning for War, Planning for Victory

General Paul Vallely (ret.) tells Newsmax that the United States has erred by fighting wars without a plan for victory.

"We have seen a lack of leadership in the White House and a really stand up position of our Joint Chiefs of Staff in the military to make sure, if we're going to put our assets in jeopardy, our personnel, then we have to go in with a plan and a victory plan and end war as soon as possible," he said.

"We've got to go back to the basics of strategy, victory, and how we win wars when we put our Armed Forces out there.

"If we don't have a sound plan for victory," Vallely said, "I would not shed one more ounce of human blood in the Middle East."

In 2006, Senator Barack Obama said something similar:

[In] any conflict, it is not enough to simply plan for war; you must also plan for success. Much has been written about how the military invasion of Iraq was planned without any thought to what political situation we would find after Baghdad fell. Such lack of foresight is simply inexcusable. If we commit our troops anywhere in the world, it is our solemn responsibility to define their mission and formulate a viable plan to fulfill that mission and bring our troops home.

AUMF Against ISIS

The president is asking Congress for authorization to use military force.  Note that no president has ever acknowledged the constitutionality of the War Powers Resolution or declared that such AUMFs

TO THE CONGRESS OF THE UNITED STATES:

The so-called Islamic State of Iraq and the Levant (ISIL) poses a threat to the people and stability of Iraq, Syria, and the broader Middle East, and to U.S. national security. It threatens American personnel and facilities located in the region and is responsible for the deaths of U.S. citizens James Foley, Steven Sotloff, Abdul-Rahman Peter Kassig, and Kayla Mueller. If left unchecked, ISIL will pose a threat beyond the Middle East, including to the United States homeland.

I have directed a comprehensive and sustained strategy to degrade and defeat ISIL. As part of this strategy, U.S. military forces are conducting a systematic campaign of airstrikes against ISIL in Iraq and Syria. Although existing statutes provide me with the authority I need to take these actions, I have repeatedly expressed my commitment to working with the Congress to pass a bipartisan authorization for the use of military force (AUMF) against ISIL. Consistent with this commitment, I am submitting a draft AUMF that would authorize the continued use of military force to degrade and defeat ISIL.

My Administration's draft AUMF would not authorize long‑term, large-scale ground combat operations like those our Nation conducted in Iraq and Afghanistan. Local forces, rather than U.S. military forces, should be deployed to conduct such operations. The authorization I propose would provide the flexibility to conduct ground combat operations in other, more limited circumstances, such as rescue operations involving U.S. or coalition personnel or the use of special operations forces to take military action against ISIL leadership. It would also authorize the use of U.S. forces in situations where ground combat operations are not expected or intended, such as intelligence collection and sharing, missions to enable kinetic strikes, or the provision of operational planning and other forms of advice and assistance to partner forces.

Although my proposed AUMF does not address the 2001 AUMF, I remain committed to working with the Congress and the American people to refine, and ultimately repeal, the 2001 AUMF. Enacting an AUMF that is specific to the threat posed by ISIL could serve as a model for how we can work together to tailor the authorities granted by the 2001 AUMF.

I can think of no better way for the Congress to join me in supporting our Nation's security than by enacting this legislation, which would show the world we are united in our resolve to counter the threat posed by ISIL.

BARACK OBAMA
THE WHITE HOUSE,
February 11, 2015.

John Yoo disagrees:

[A] closer reading of the Obama proposal reveals severe flaws that undermine this purpose. First, and most glaring, the authorization will have only a three-year lifespan, after which Congress would have to pass a new law to resurrect the war. No important declaration of war or authorization to use force has ever had such a sunset, because no armed conflict will ever obey an arbitrary deadline. Even the Framers, removed by centuries from our modern battlefield with its non-state enemies and asymmetric tactics, understood this. Alexander Hamilton argued against critics of the Constitution who wanted to impose similar limits on the government’s war powers (such as forcing armies to disband every year): Because the “circumstances that endanger the safety of nations are infinite,” he wrote in Federalist 23, “no constitutional shackles can wisely be imposed on the power.”

Hamilton and our Constitution’s Framers understood that war was so unpredictable that it could not be dictated by rules beforehand. But this is exactly the course on which the White House’s Authorization for Use of Military Force (AUMF) would set the nation. It makes little sense to announce to your enemies in advance when you will stop fighting. A three-year deadline will have the same harmful effects that Obama’s arbitrary withdrawal dates in Iraq and Afghanistan did. Groups and nations opposed to the United States, such as the Taliban in Afghanistan, ISIS in Syria and Iraq, and Iran in the Middle East, will simply wait us out. Or they may employ destructive delaying tactics in the hopes that war-weariness will lead a small minority in Congress to block a reauthorization in 2018. Try to imagine that, on December 8, 1941, President Franklin D. Roosevelt had asked Congress for a declaration of war that would last only three years. It is impossible, because FDR took war seriously and understood that our enemies fight not according to our plans, but according to their own.

The Constitution and Contemporary Politics

Tenth Annual Constitution Day Conference

Ronald Reagan Presidential Library

Simi Valley, California 

September 13, 2014

Resources on the Constitution and the Courts

The War Power

Powers of Congress (Article I, section 8):

• To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
• To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
• To provide and maintain a Navy;
• To make Rules for the Government and Regulation of the land and naval Forces...

Powers of the President (Article II, section 2):

•  The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; 

Declared and Undeclared Wars

• The list of declared wars
• Legal implications of a declaration of war
• Use of military force abroad
• The War Powers Resolution
• President Obama, ISIS and the war power
• Senator Obama's comments in 2007

Executive Power 

Powers of the President (Article II, sections 1 and 4)

• The executive Power shall be vested in a President of the United States of America ...
• [H]e shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. 

Uses of Power

• Signing statements
• Executive orders

Impeachment

Powers of Congress (Article I, sections 2 and 3):

• The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. 
• The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
• Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law

History

• Background on the impeachment process.
• There is an entire site on the Johnson impeachment.
• Another impeachment

The Affordable Care Act

Powers of Congress (Article I, section 8)

• The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises..
• To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes...

Issues

• The individual mandate
• Contraceptives and Hobby Lobby
• Subsidies and Halbig

The President, ISIS, and War Powers

President Obama says that he has authority to act against ISIS because of the War Powers Act and the congressional authorization for the Iraq War. Andrew Rudelevige writes at The Washington Post  that neither rationale holds up.

First, the Obama administration has not actually filed any reports under the War Powers Act (or rather Resolution — thus, the “WPR”). The president has indeed sent a number of letters to Congress about the Islamic State and Iraq since June — the latest such is dated September 8 — but these are simply to keep Congress “fully informed.” Doing so is “consistent with the War Powers Resolution” (my emphasis) — but the president never says he is reporting “pursuant to” the WPR, as a consequence of that statute, as required by section 4(a)(1). The “consistent with” is boilerplate language that far predates Obama — presidents have rarely admitted that the WPR is binding or even constitutional — but the letters do not concede that the WPR limits his authority in any way. Indeed, in each letter Obama claims that he is acting “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”

...
How about the authorization to use force in Iraq (P.L. 107-243), passed nearly 12 years ago? Is that a “specific statutory authorization” for the present circumstance? Had the Bush administration’s preferred text been adopted in 2002, Congress would have given the president power “to use all means” to “restore international peace and security in the region,” i.e., the entire Middle East, and Obama would have a great case. But the actual resolution states:

The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to -- (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

Thus the authorization is for the use of force against (the state of) Iraq, rather than in Iraq. The Security Council resolutions referred to deal with weapons of mass destruction; with “repression of its civilian population”; and with “threatening its neighbors.” The Islamic State may be doing some of these things, but Iraq itself is not; indeed, the threat to the United States from Iraq’s government seems to be from the latter’s incompetence. Potential attacks within Syria’s borders seem even more removed from the authorization’s intent.

Iraq and War Powers

A number of posts have discussed war powers.

Harvard law professor Jack Goldsmith writes:

If the President plans to engage in military operations in Iraq for “months” (and almost certainly longer) in an effort to address the militant threat posed over the long term there, then the case for doing so in reliance solely on his inherent Article II self-defense power just grew weaker, legally and especially politically, and the case for seeking authorization from Congress for the military strikes just grew stronger. As I noted yesterday, the case for seeking congressional authorization in this context was made forcefully and persuasively less than a year ago by President Obama himself, when he explained why he was seeking congressional authorization prior to military strikes in Syria.

In January 2007, candidate Obama said:

 What we're saying is that if we can begin a phased withdrawal and give the Iraqi government a sense that we are not engaging in an open-ended commitment, we're not going to babysit a civil war and we're not going to continue to throw American troops at the problem, that they will actually arrive at the sort of political solution that's necessary.

A few weeks later, his then-rival and future secretary of state cribbed his line, as The New York Times reported:

On Sunday, Mrs. Clinton for the first time on the campaign trail used the phrase “civil war” to describe the violence in Iraq. Speaking about building coalitions with Middle Eastern nations, she said she would take a new approach: “I would say ‘I’m sorry, it’s over. We are not going to baby-sit a civil war.’ ”

War Powers and Chad

The president has sent this letter to the House Speaker John Boehner (R-OH) and Senator Patrick Leahy (D-VT), president pro tem of the Senate:

Approximately 80 U.S. Armed Forces personnel have deployed to Chad as part of the U.S. efforts to locate and support the safe return of over 200 schoolgirls who are reported to have been kidnapped in Nigeria. These personnel will support the operation of intelligence, surveillance, and reconnaissance aircraft for missions over northern Nigeria and the surrounding area. The force will remain in Chad until its support in resolving the kidnapping situation is no longer required.

This action has been directed in furtherance of U.S. national security and foreign policy interests, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.

I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution (Public Law 93-148). I appreciate the support of the Congress in these actions.

Congress and Syria

According to The Washington Post, the president told chief of staff Denis McDonough that there were two reasons why he abruptly decided to seek congressional authorization for a military strike on Syria.

He wanted there to be political accountability — lawmakers from both parties, he believed, should be on the record in support or against the war.

Obama told advisers that congressional support, far from certain, given the animosity that extends the length of Pennsylvania Avenue, would ultimately strengthen support for the war and perhaps protect public opinion for a sustained operation.

The other reason? Unlike the U.S.-led military operation in Libya in 2011 — which was supported by the U.N. Security Council and the Arab League — the United States did not have the same level of international backing.

Obama’s proposal to invite Congress dominated the Friday discussion in the Oval Office. He had consulted almost no one about his idea. In the end, the president made clear he wanted Congress to share in the responsibility for what happens in Syria.

As one aide put it, “We don’t want them to have their cake and eat it, too.”

More Biden on War Powers

Yesterday's post included a passage from a March 15, 1995 Senate floor speech by Joe Biden, in which he raised questions about presidential war powers.  Here is another passage from the same speech.

Last summer, Clinton administration officials characterized the Haiti operation as a mere police action, a semantic dodge designed to avoid the need for congressional authorization. 

Some of my Democratic colleagues suggested that the war clause of the Constitution was entirely ceremonial and that the President had virtually unlimited discretion to order an invasion of Haiti. These were some of the same Democrats who stood here on the floor and said President Bush did not have the authority to act in the gulf without congressional assent; proving the axiom that Senators and Congressmen tend to pick what side of their issue they are on depending on the partisan need. 

We have the interesting phenomena, Republicans on the floor who said there was a broad range of congressional authority, but when it came to Clinton exercising it, saying, no, he did not have the authority; and Democrats who were on the floor telling President Bush he did not have the authority but saying, no, President Clinton does. To be sure, there were some of my Republicans and Democratic friends who were consistent-who may have questioned the President's policy in Haiti but did not question the right to deploy those troops in the absence of congressional consent.

In my view, the assertions expressed during the Haitian crisis underscore that the doctrine asserted by President Nixon 25 years ago still grips the executive branch. More alarming, the congressional viewpoints I summarized suggest that the legislative surrender of the war power continues, based in part on whether or not the man or woman in power is a man of your party and whether you agree with him on the substance of the action.

Other recent posts have noted a similar phenomenon with debates over the filibuster.

Biden on War Powers

On March 15, 1995, then-Senator Joseph Biden spoke on the Senate floor about war powers:

The proposition that Congress had the power to initiate all wars except to repel attack on the United States is also strengthened in view of the second part of the war clause. That is the power to "grant Letters of Marque and Reprisal."

Now, most Americans, I daresay most Members of Congress, I daresay most members of Government, do not even know what the "power to grant Letters of Marque and Reprisal" means and why it is in the Constitution. An anachronism today, letters of marque and reprisals were licenses issued by governments, usually to private citizens, but on occasion to government agents, empowering these private citizens or government agents to seize enemy ships or take action on land, short of all-out war.

In essence, it was the 18th century version of what we now regard as limited war or police actions. That is what letters of marque and reprisal were. If you are having trouble with pirates off the coast, you are not looking to declare war. The Federal Government, in this case the Congress, could go out and hire out, give permission to, give a letter of marque and reprisal to a local. Think of it in terms of a local security agency that comes by and patrols your neighborhoods. You could give letters of marque or reprisal and say, "You are authorized under the law, through the Congress, to go seize those pirate ships."

That is what it was about. A leading commentator of the day-that is, the late 1700's-a leading commentator of the day on international law explained the distinction this way: "A perfect war is that which entirely interrupts the tranquility of the state. An imperfect war, on the contrary, is that which does not entirely interrupt the peace.Reprisals are that imperfect kind of war."

So, when we hear people talk about imperfect wars, it is used as a term of art as it was used back in the late 1700's. The framers undoubtedly knew that reprisals or imperfect wars could lead to general or all-out wars. England, for example, had fought five wars between 1652 and 1756 which were preceded by public naval reprisals.