Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, looks at growing arguments about congressional approval for military actions in Syria and Iraq, and what the Founders intended for war-making and war-declaring powers.
THE STATEMENTS AT ISSUE:
“The White House claims that Mr. Obama has all the authority he needs under the 2001 law approving the use of force in Afghanistan and the 2002 law permitting the use of force in Iraq, but he does not. He has given Congress notification of the military action in Iraq and Syria under the War Powers Resoulution, but that is not a substitute for congressional authorization.”
– New York Times editorial September 24, after the Syrian bombing campaign began on September 23.
“After spending nearly six years of his presidency installing a series of constraints on U.S. counterterrorism operations, President Obama has launched a broad military offensive against Islamist groups in Syria that stretches the limits of those legal and policy enclosures. The barrage of airstrikes was aimed mainly at a military group, the Islamic State, that is no longer among the Al-Qaeda ‘associates’ envisioned by the military authorization passed after the Sept. 11, 2001, attacks. The group is not even suspected of planning attacks against the United States.”
– Greg Miller and Karen DeYoung, reporters for The Washington Post, in the lead story in that newspaper on September 24.
“I firmly maintain that Congress needs to authorize this new war against ISIL [Islamic State in Iraq and the Levant] as I do not believe the Authorization for Use of Military Force passed in the days following September 11th grants the President the power to conduct an open-ended, long-term war against ISIL”
– U.S. Senator Chris Murphy, Connecticut Democrat, in a statement September 18 arguing that Congress has a duty to debate President Obama’s order to stage air attacks on the Islamic State forces in Syria, and explaining why the senator had voted against giving the President authority to arm and train rebel forces in Syria. After U.S. bombing of sites in Syria actually started, Senator Murphy sharpened his criticism, arguing in a cable TV network interview that those attacks were illegal.
“Nothing in this section shall be construed to constitute a specific statutory authorization for the introduction of United States Armed Forces into hostilities or into situations wherein hostilities are clearly indicated by the circumstances.”
– Excerpt from the congressional resolution authorizing the arming and training of Syrian rebels. That resolution was approved by the House of Representatives on September 17 by a bipartisan vote of 273 to 156, and by the Senate on September 18 by a bipartisan vote of 78 to 22. President Obama signed it on September 19. The resolution is scheduled to expire on December 11.
WE CHECKED THE CONSTITUTION, AND…
The Constitution’s simply worded assignment to Congress of the ominous task of declaring war has lost its simplicity in the complex modern world of global war and threats of terrorism. In fact, it is no longer easy to understand just what “war” means, in either a constitutional or strategic military sense, so modern presidents have felt free to send the U.S. military into combat situations without anything resembling a formal declaration that America was actually at war. And, constitutionally, there is no practical remedy for that.
Just as America was getting used to the idea that foreign campaigns that had lasted for more than a dozen years were coming to an end for the U.S. military, and beginning to think that the “war” on terrorism was not, after all, going to be perpetual, the nation awoke to news of waves of U.S. bombers and missiles striking Islamic State targets in Syria against a new-found enemy.
The beginning of the new bombing campaign was accompanied by a flurry of news stories out of Washington, reporting the often-shifting claims of authority to carry out that campaign. When a strategy for destroying the Islamic State movement was first announced, the stories said President Obama could mount such an attack solely because he was Commander in Chief, under Article II.
But in the days running up to the start of the bombing campaign, the reports were that the authority could be found in the congressional resolution passed in 2001, after the terrorist attacks on U.S. soil, and then the reports switched again, and this time claimed that the authority to attack was bolstered by a resolution in 2002 that committed U.S. forces to action in Iraq. This week, officials were quoted as saying that Iraq’s new government had asked for protection from the Islamic State, and that request, sent to the United Nations, validated U.S. air strikes across the border in Syria.
It may be that some of these varying accounts reflected what is often called “the fog of war,” when rapidly changing conditions on what serves as a “battlefield” (itself a rather outmoded notion) make it hard to say just what is going on, and so make it hard to find the right justification for the response.
If there is time before an actual war or military campaign starts, that is when debate might sharpen the focus on who has power to do what – that is, a focus on who makes the call to start a war. But once the hostilities are under way, options on the kind of military force to use become almost entirely matters left to the White House, on advice of the Pentagon, and a state of war – or at least hostilities -- exists.
It is far from clear that this is what the Founders had in mind when they split up the war-declaring power, putting that in Congress, and the war-making power, lodged in the Executive Branch, and especially in the Commander in Chief. The constitutional shift toward the primacy of the presidency in starting and carrying on hostilities may well have come about over many decades because, constitutionally, that was the path of least resistance.
Some of the Founders spoke approvingly of the “energy” of the Executive, and its innate capacity to move more speedily than could a deliberative body like Congress. But Congress is also entirely capable of acting with dispatch – as it did in passing the resolution authorizing a military response to the 2001 terrorist attacks, and as it did just last week in approving the arming and training of rebel forces in Syria as part of the new campaign against the Islamic State.
But last week’s Syria resolution was careful to include the notice to the White House that this limited measure was not the equivalent of a declaration of war against the Islamic State. That is the grave question that, when Congress returns to work, probably not until after the November elections, it will have the opportunity to confront. In the meantime, the air war, based on whatever power the President and his aides have chosen to assert, will have gone on for some six weeks or more – legally or not.
