Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at how the fundamental question of how war powers are shared between the President and Congress remains an issue in constitutional conflict.
THE STATEMENTS AT ISSUE:
“Although my proposed [Islamic State] Authorization for the Use of Military Force 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.”
– President Obama, in a February 11 letter to Congress proposing a new law to give the Executive Branch the authority to use U.S. military force against the Islamic State, accused of carrying on terrorist operations in Iraq and Syria.
“A bipartisan group of legal experts – including former officials from each or the last three administrations – have insisted that any proposal to specifically authorize force against ISIL [the Islamic State] at least address, if not sunset, the 9/11Authorization for Use of Military Forces. Otherwise, leaving the 2001 statute untouched not only renders an ISIL-specific bill largely beside the point, but it does nothing to end the ‘forever war.’ ”
– Stephen Vladeck, a law professor at American University in Washington, D.C., in a commentary on MSNBC Daily on February 11, reacting to the President’s new proposal.
“The proposed ISIL AUMF does not restrict using the 2001 Authorization to bypass the limits set in an Islamic State-specific law. The Administration has already claimed that the 2001 AUMF gives them the necessary authority to engage in armed conflict against the Islamic State.”
– The National Security Network, a national defense advocacy group, in an online commentary on February 11, responding to the President’s proposal.
WE CHECKED THE CONSTITUTION, AND…
Perhaps it was an act of genius in the science of representative government that the Founders in writing the American Constitution imagined a sharing of war powers between Congress, the representative of the people in the states, and the President, the representative of the whole nation. But giving the power to “declare” war to Congress, and the power to “wage” war in the President as Commander in Chief, has not settled the fundamental question of how war powers are to be shared.
Although Congress has specifically approved the start of only five wars, it has issued the equivalent of a declaration of a conflict with another nation a total of 11 times throughout history. And, counting all resolutions to authorize the President to use military force, Congress has committed the nation to such action 35 times.
On all but one of those occasions, Congress has put some limits on what it was permitting: a geographic limit, a specific naming of the enemy, the kinds of military action, or an expiration (“sunset”) date. The one exception, with none of those limitations: the 2001 Authorization for the Use of Military Force, passed within days after the terrorist attacks on the United States on September 11, 2001.
President Obama has won significant praise, from scholars, pundits and some politicians, for his action last week in recommending limits on a new move to wage military action against the Islamic State in Iraq and Syria. He proposed a three-year time limit on that authority, and a lack of permission for extensive use of U.S. ground troops against ISIL. He also asked Congress explicitly to repeal a 2002 resolution that had authorized the U.S. military invasion of Iraq.
As the President conceded, however, he explicitly declined to ask for repeal of the 9/11 authorization – the warmaking power that Congress had authorized against the Al Qaeda and Taliban terrorist networks in 2001. And that is the specific resolution upon which the President has claimed authority, since August 2014, to justify some 2,300 strikes by U.S. air forces against ISIL in Iraq and Syria. Indeed, with that authority on the books, the President and his aides have insisted that he actually did not need a new ISIL-specific grant of power, although they made clear they think it would be better for the country if the commitment were a shared one.
Many critics of the 9/11 authorization have noted that ISIL did not even exist at the time that measure was enacted. Professor Vladeck (quoted above) has argued that “the vague and broad language” of the 9/11 resolution “has been stretched by the Obama administration” to authorize the use of force in situations far removed from the operations of Al Qaeda and the Taliban, especially in Afghanistan. In fact, Vladeck and others have argued that the 9/11 measure essentially set the nation on a path to “perpetual war” and that such an enduring conflict will not end until that measure has been repealed, or at least substantially rewritten.
Beyond the Executive Branch, the federal courts – including the Supreme Court – have viewed the 9/11 resolution as adding significantly to presidential authority to detain individuals – including some U.S. citizens – who get caught up in the “war on terrorism.” And it remains, in the courts and Congress, as an argument for keeping open the military detention facility at Guantanamo Bay, Cuba.
Initial reaction in Congress to the President’s ISIL authorization proposal has suggested that many Republicans think it puts too many restraints on U.S. military options, and many Democrats think it lacks sufficient restraints.
But the President’s initiative in sending to Congress a proposal for dealing with ISIL, when he and his aides believed that any new authorization was actually unnecessary, does have the positive effect of inviting a serious debate about the dimensions of “perpetual war” – what its goals should be, how those are to be achieved, and – perhaps more important than any other question -- whether there is any way to end it, at a definable point.
No prior war in American history has been waged beyond a more-or-less well-defined end--point, and the nation surely hopes that this will not be the first without one.
