War: Presidents? Congress? Who The Fuck Decides?

The Media…Facebook friends…anonymous government officials…conspiracy theorists…bloggers…and your fucking angry uncle are all constitutional law experts when it comes to Trump’s missile strike on Syria. The more microphone and internet space is provided, the more the space is filled with opinions and thoughts. Everyone thinks they know what the fuck they are talking about…and they all say things like: “…the Constitution says…the War Powers Act…blah, blah, blah.”

So here I am filling in my little area of digital space to provide a (somewhat) quick and easy guide to the War Powers Act, some historical context, and the one acronym that isn’t being used too often outside the insider baseball world of national security…AUMF…Authorization for the Use of Force.

War Powers Act

  • The legal mumbo jumbo is P.L. 93-148 (87 STAT. 555), the War Powers Resolution and called the “War Powers Act” was passed by Congress over President Nixon’s veto in 1973. The WPA is codified in US Code in Title 50, Chapter 33, Sections 1541-48;
  • “resolution” is misleading…it is a law;
  • Constitution says President is Commander-in-Chief (Art.II, Sect. 2); and Congress make declarations of war, and to raise and support the armed forces (Art I, Sec.8);
  • Over time the President’s role as CINC and Congress’ role to declare war has caused questions about war and the use of military force;
  • WPA is a direct result of the Vietnam War and addresses the concern that results when the introduction of US military forces abroad could lead to their involvement in armed conflict;
  • WPA is primarily to “insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities,” and that the President can only exercise his CINC responsibilities once Congress has authorized the use of military force;
  • WPA requires the President to consult with Congress before introducing the military into hostilities or situations where hostilities are imminent;
  • WPA establishes a 60 day time limit on the President’s reporting to Congress;
  • WPA requires that the military must be removed from hostilities unless Congress approves the military action OR if Congress is physically unable to meet and deliberate due to a physical attack on the US;

From Nixon to now, Presidents have had serious asshurt about the WPA and say it is unconstitutional (SCOTUS has deemed otherwise). Because of this, the WPA has been controversial…and it is an on-going issue due to the worldwide deployment of the US military. Since its enactment, Presidents have submitted over 120 reports to Congress pursuant to the WPA.

Historical Context

Here are some major examples related to the WPA:

  • 1975 President Ford submitted a report to Congress as a result of his order for the military to retake the Mayaguez, a US merchant vessel which had been seized by Cambodia;
  • 1981 President Reagan deployed military advisers to El Salvador but filed no WPA report to Congress. Congress filed a federal lawsuit in an attempt to for Reagan’s compliance with the WPA, but the US District Court hearing the suit declined to be involved when the judge saw a political question…whether US forces were indeed involved in hostilities;
  • 1982-1983 President Reagan sent a unit of Marines to Lebanon to participate in peacekeeping operations. Reagan submitted 3 reports to Congress but didn’t cite the 60 day time limit. Over time the Marines came under enemy fire and some called for the Marines withdrawal. Congress, in an agreement with Reagan, passed P.L.98-119 in 1983 which authorized the Marines to remain in Lebanon for 18 months. Reagan signed the law and was the first time a President signed legislation invoking the WPA. The eventual bombing of the Marines’ barracks in Beirut led to their eventual withdrawal;
  • 1990-1991 President H W Bush sent several reports to Congress regarding military force buildup in Operation Desert Shield. HW Bush took the position that he did not need congressional approval to carry out UN resolutions which authorized member states to use “all necessary means” to eject Iraq from Kuwait; however, he did ask for congressional “support.” Congress passed P.L.102-1 which authorized the President to use force against Iraq if the President reported that diplomatic efforts had failed to remove Iraqi forces from Kuwait. HW Bush did so report and initiated Operation Desert Storm;
  • 1993-1999 President Clinton used the US military in various operations, such as air strikes and deployment of peacekeeping forces in the former Yugoslavia. These operations were pursuant to UN resolutions and conducted in conjunction with NATO member states. Clinton issued numerous reports to Congress but never triggered the 60 day limit. Some Members of Congress did not support these operations but were unable to pass legislation that limited the President’s actions. A federal law suit was filed saying the President violated the WPA when the 60 day time limit passed before he ordered air strikes on Kosovo. President Clinton stated that the WPA was constitutionally “defective”. US District Court ruled in the President’s favor and SCOTUS refused to hear the appeal.
  • 2001 In the wake of the 9/11 terrorist attacks, Congress enacted P.L. 107-40 which authorized President W Bush to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001…” For the first time, “organizations, or persons” were specified in a congressional authorization to use force pursuant to WPA.
  • 2002 Congress authorized W Bush to use force against Iraq pursuant to WPA, in P.L. 107-243.
  • 2013 The (then) Senate Majority Leader Harry Reid (D) introduced legislation that would have authorized President Obama to use military force to intervene in the ongoing Syrian civil war. The bill specifically contained provisions about the use of chemical weapons. The bill did not pass.

AUMF

  • AUMF is “Authorization for the Use of Military Force”;
  • It is the term that means Congress authorizes the President, with their authority under WPA, to deploy and use military forces in hostilities or in areas where hostilities are imminent;
  • AUMF is often the cited phrase used in legal suits and discussions when the constitutionality of a certain military deployment or action happens with or without congressional approval.

Why Any of This Fucking Matters

  • There is NO AUMF for Trump to use force in Syria;
  • There was NO AUMF for President Obama to use force in Syria…even though Obama did order air strikes and military assistance to Syrian opposition groups;
  • Trump never reported to Congress prior to launching cruise missiles at a Syrian airbase;
  • Trump did not report to Congress prior to deploying a Marine unit to Syria earlier this year;
  • Congress COULD file a federal lawsuit demanding the end of all US military operations in Syria, which would require (like other historical military deployments) federal courts (up to, if necessary, SCOTUS) to hear the case;
  • Legal precedent shows that, in the past, federal courts have sided with the President (Balkans, 1990s)…or at least required the President and Congress to reach an agreement on the deployment of military force (Lebanon, early 80s);
  • Many constitutional and WPA experts (I am not one) argue that WPA is now toothless due to congressional inaction or willingness to allow presidential CINC authority (as cited in the Constitution) to supersede congressional declaration of war authority (as cited in the Constitution);
  • Congress, COULD (at a minimum) require Trump to inform Congress of his immediate, short-term, and long-term strategic goals in Syria. Congress COULD require Trump administration officials such as the SecDef and SecState to meet with and testify before about the Trump administration Syrian strategy;
  • FINALLY, congressional inaction may result in it further relinquishing its constitutional authority to declare war, thus further allowing the increase in presidential power as related to war and limiting the enforcement of AUMFs.

Then again…maybe none of this matters…what the fuck do I know?

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