The Constitution granted war-making powers to Congress, but President Obama, like his post-World War II predecessors, has trampled on that provision with open-ended executive wars, writes Ivan Eland.
By Ivan Eland
The Obama administration has decided to stretch the 15-year-old congressional authorization for war against the perpetrators of the 9/11 attacks, or those harboring them, to include an illegal war against a group in Somalia — al-Shabab — that wasn’t even in existence at the time of the attacks in 2001.
In fact, as with many of its Islamist terrorist opponents worldwide — including the original Al Qaeda, the perpetrator of 9/11 that arose from U.S. arming of mujahedeen guerrillas against the Soviet Union in Afghanistan in the 1980s and Al Qaeda in Iraq, which arose to combat the U.S. invasion there and morphed into ISIS — the United States inadvertently helped create al-Shabab in the first place. Al-Shabab did not arise until after 2007, long after 9/11, when the U.S. sponsored an Ethiopian invasion of Somalia to wrest control of the country from a milder Islamist council. The more virulent al-Shabab rose to attempt to repel this foreign invasion.
More generally, after 9/11, rather than following the congressional authorization and focusing like a laser beam on countering the original Al Qaeda group and their patrons, the Afghan Taliban, the George W. Bush administration launched a general “war on terror,” which covered all terrorist groups of international scope, regardless of whether or not they focused on attacking U.S. targets.
In the end, this massive Bush administration violation of the narrow 2001 authorization led to illegal U.S. drone wars and airstrikes in countries all over the Middle East and Southwest Asia — Somalia (against al-Shabab), Yemen (against Al Qaeda in the Arabian Peninsula), Pakistan (against the Pakistani Taliban), and Iraq, Syria, and Libya (against ISIS). The Obama administration then accelerated all these unconstitutional wars.
Now Obama is trying shore up the already thin legal fig leaf, so that it can pass such travesties — which actually make Islamist groups more rabid each time the U.S. intervenes — onto the incoming Trump administration. When Obama took office, he complained that he inherited from the Bush administration an economic meltdown and a military quagmire in Iraq, but he in turn is bequeathing a legal quagmire to his successor.
Ambiguities in the U.S. Constitution do exist, but which branch of government was given the war power is not one of them. In Eighteenth Century Britain, the prerogative of deciding to go to war was the king’s. Having been a victim of this prerogative, debates at the American Constitutional Convention of 1787, the Constitution that resulted, and actual practice in the republic for almost two centuries until the Korean War in 1950 demonstrate conclusively that Congress — the people’s branch — gets to initiate war, not the executive.
The Constitution specifically gives Congress the power to commence war; the debates at the Constitutional Convention indicate that the only exception is for urgent self-defense — that is, when U.S. territory is under sustained attack, thus preventing the Congress from convening. Even then, the Congress should meet at the earliest possible time to ratify any moves in self-defense made by the president, as commander in chief. Very early in American history, even in the informal and sporadic war at sea with France (the Quasi-War) in the last few years of the Eighteenth Century, the Congress was in the driver’s seat in conducting the war and President John Adams complied with its desires.
And in contrast to presidential claims of an expansive commander-in-chief role since the Korean War, the Constitution’s framers intended, and normal practice until 1950 confirmed, that the president’s role in that capacity was taken narrowly to mean only commanding troops on the battlefield after war had already been initiated by Congress — not commanding the entire nation, in times of crises or otherwise.
Yet since 1950, presidents have claimed powers to start wars even without any authorization from Congress — either getting none (for example, Bill Clinton in his war to separate Kosovo from Serbia in 1999 or Barack Obama in overthrowing Muammar Gaddafi in Libya in 2011) or claiming that they needed to do so only as a courtesy, which was primarily a gambit to win increased political support for their military escapades (for example, both Bushes in each of their misadventures in Iraq).
The Drone War Deception
Another trick is what Bush and Obama have done with the aforementioned drone wars — trying to blatantly fold wars against other only tangentially-related “Islamist” groups in countries far from Afghanistan into the congressional authorization for war against the perpetrators of 9/11 — the original Al Qaeda group and their hosts, the Afghan Taliban. Such legal gymnastics must stop.
During the Trump administration, the many drone wars either must be made legally legitimate, with specific approval for each of them from the people’s houses of Congress, or they must be stopped. The latter solution would be preferred — because those counterproductive foibles are making the threat from Islamist terrorism more virulent with each U.S. military intervention — but even the former option would at least put the wars on a much sounder constitutional footing.
Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at the Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. [This article first appeared as a blog post at Huffington Post.]
Yeah, I’m sure Emperor Donald is gonna bring that crap to a screeching halt. Day 1.
I agree with much of the article. Among other things, the author makes a claim that I have often read, but for which I have never seen any evidence produced, except for spradic anecdotal sound bites: “counterproductive foibles are making the threat from Islamist terrorism more virulent with each U.S. military intervention”. What evidence is there for this claim?
The Clean Break-motivated Global War on Terror engineered by the Neocons is all about Political Judaism/Jewish power in the US – and it’s time we take a good hard look at the Israeli Lobby/Jewish Lobby/Neocons and Political Judaism/Jewish power in the US
Real-life Jewish power in the US and Israel is experiencing a transformational American President regarding ‘Jewish power’
Obama’s Transformative Effects on Jewish Power in the US and Israel? – such as stopping Bibi’s in motion attack on Iran in Sept/Oct 2012, stopping Bibi’s Putsch against the US over the Iran Deal, and stopping Israeli Annexation of Palestine?
Obama’s Transformation of Jewish Political Power/Political Judaism in the US and Israel:
1-Stopping Israeli Annexation of Palestine
2-The Dismantling of Israeli Apartheid and the Israeli Lobby
3-The Dismantling of Political Judaism: The Israel Lobby in the US and Israeli Apartheid
What the UN Sec Co Resolution against Israel is going to do is STOPPING Jewish power in Israel and beginning the rolling back and dismantling of the Apartheid
Where does the ADL stand on the Palestine Annexation Law passing in the Knesset and UN Sec Co Resolution against Israel? Thought so…
Where does J Street stand on the Palestine Annexation Law passing in the Knesset and UN Sec Co Resolution against Israel? Thought so…
The mice are going to be seperated from the men – there are no Liberal Zionists/Liberal Kahanists.
Zionism as practiced by it’s Israeli enthusiasts (and they’ve got bells on their toes these days) is Kahanism and Apartheid, and Apartheid is a crime against humanity according to the UN, Geneva, and all international law.
I want Peter Beinart, Jeffrey Goldberg, David Brooks, Tom Friedman, and the REST of the punditocracy on the record regarding the Palestine Annexation Law passing in the Knesset and the UN Sec Co Resolution against Apartheid Israel – preferably sooner rather than later before they begin extensively coordinating their stories. I want them thinking on their feet, in the midst of the shock and awe
The Zeitgeist is against Apartheid Israel and the Israel Lobby supporting it.
The time is ripe for the UN Sec Co Resolution against Israel – the time is ripe for dismantling the Apartheid that will flow from this, as well – these are existential transformational events taking place for Jewish power in the US and Israel.
Barack Obama is going to be known as a Transformational American President primarily for the Successful 2nd American Revolution of 4-2-16 (The Iran Nuclear Deal Framework) which he has led. And it had everything to do with ‘real Jewish power’ rather than stereotypes
It’s a Club of 2 – George and Barack, sorry Abe….
OK that doesn’t sound quite right – let’s call it the big three: ‘George, Barack, and Abe’
We are living in the world envisioned by the novel “Nineteen Eighty-Four.” That is a world of constant background war against a shifting mix of enemies (Eurasia, Eastasia), part of the way the ruling elite maintain power. And the Newspeak language turns meanings upside down. Freedom is slavery. War is peace. Ignorance is strength.
I don’t see these wars as Wars “on” Terror but rather Wars “of” Terror (7 countries in 5 years) to put resource rich countries under the thumb of the US (and the Western World) meanwhile protecting the US Petrodollar, which ensures that the US Dollar remains the world’s reserve currency, and trying to stave off China’s rise to the number one economy in the world (which it already is according to Purchasing Power Parity). I also, again, want to thank the poster who put the link to Eva Bartlett (in a previous article) whom I believe nailed what is happening in Syria when she was speaking at the UN.
The author and comment providers sound plausible except for one innuendo _ that 9/11 was perpetrated by Al Qaeda and not Bush, Cheney, the overwhelmingly Jewish State Dept, USAF generals, CIA, Mossad, Bandar, ISI, and others . So what we have here is probably another piece of disinformation to reinforce the public myth promulgated by P.Zelikow or less probably sheer ignorance regarding the 9/11 events. I highly recommend you watch the YouTube video “9/11 PENTAGON ATTACK, BEHIND THE SMOKE CURTAIN, BARBARA HONEGGER by placing that exact title in the YouTube search box. The lecturer in that video was a Pentagon journalist and a Reagan White House staff member. I can recommend many other highly informative videos and documents.
I should add that the warmonger pretense, of course, is that there is never a time of peace, but rather a permanent cause of fear, a cold war or a persistent global war on terror, the conjuring of which requires oligarchy control of the mass media and thereby elections. This is the fearmongering of the tyrants over democracy, against whom Aristotle warned. The Founders were well aware of this problem, and their provisions against tyranny have been ignored and not improved, resulting in the collapse of democracy.
Nearly every problem in foreign nations is best addressed with foreign aid, incentives to political progress, education, and time. The exceptionalism of America lay in its original concept of democracy without aristocracy, its economic strength and stability due to size and isolation, and its relative economic strength after WWII. All of these have been wasted by the military interventionists.
If the US had spent its pointless military expenditures since WWII on humanitarian assistance, it would have lifted half the world from poverty. If it had thereby built the roads, schools, and hospitals of the developing world, it would have no organized enemies, and would have truly achieved an American century. These would have directed the resources wasted in military technology toward greater domestic development, more useful technology, and economic strength.
The US now does not consider results other than disruption, nor means other than force, and this prevents any humane agreement in the Mideast. Democracy and peace among factions is cultivated by preparing the soil, not by choosing sides and killing everyone who disagrees. The inability to arrange talks or even find moderates is the direct result of constant US militarist intervention instead of foreign aid, education, and diplomacy.
This is because most US politicians are bribed by Israel and KSA and the MIC; they are traitors against the US and war criminals, by choice and by personality. They are infantile bullies propelled upward in an unregulated economy by their lack of ethics. The US cannot benefit humanity until it reforms its corrupt government to eliminate militarism, fearmongering, and secret wars. To do that we must eliminate large secret agencies, eliminate executive warmaking by making checks and balances work properly, and make constitutional amendments to restrict funding of mass media and elections to individual contributions. But without those tools of democracy we cannot get those protections.
It is failure to regulate economic power that cost the United States its exceptionality. Our only hope is executive overreach by a progressive president, to investigate political corruption, toss out corrupt politicians and judges, shut down rogue agencies, downsize the military, hold new elections, and demand constitutional amendments. With Hillary down, Trump may discredit himself enough to bring a true progressive to power, unless the Dems destroy the Left again with more fashion issues and tricks for oligarchy. If so, the US has an incurable disease. The only constructive future role for the US may be its containment by others.
Well said. I wish you could get the point across to the entire American population, but you’d never be given a forum and they’d never listen… unless you are already a celebrity.
Well said. The reliance on lobbies and money for political campaigns just to enter and remain in Congress ruins any hope of independent- thinking representatives of the populace being in enough numbers to have any positive effect on policy. The system needs to change, as does the appointment of partisan judges to the SCOTUS and elsewhere. This seems another American anomaly.
The US government does not have constitutional authority to engage in foreign wars, except under treaty. The Constitution states clearly that all federal powers not enumerated therein are reserved by the states and the people, and the only military powers are to repel invasions and suppress insurrections. The only exceptions are Letters of Marque (allowing arrest of persons elsewhere for crimes in the US) and Letters of Reprisal (authorizing attacks upon named armed entities, usually pirate ships).
The AUMF cannot legally be more than a Letter of Marque to arrest specific 9/11 attackers, and a Letter of Reprisal, for a limited expedition to attack the Bin Laden compound. It is not constitutional to attack Afghanistan, Iraq, Syria, Libya, or Saudi Arabia, Yemen, et al even indirectly as a source of potential attackers, because the US government has no such authority. These are wars for which Bush & Obama/Clinton should be tried by the US for high crimes, or by the ICJ at the Hague as war criminals.
The federal government has no foreign war power except by treaty such as NATO, and we don’t need it. Terrorism at a long distance is ordinarily a small-scale operation, well suited to letters of marque and reprisal, with operations limited to the scale on which we were attacked, even when sourced by a large insurgency. If we suffered many attacks in the US, the question would be why we have large non-state enemies far away if we are not attacking them. In the case of AlQaeda it was because the US had long been engaged in unconstitutional secret wars. If the US had not done so, it would have no motive for unconstitutional wars, and US tyrant warmongers would have no excuse to abuse the NATO treaty.
NATO was intended purely for mutual defense against major aggressions by nations. Its existence now is a dangerous temptation for the classic tyrants over democracy against whom Aristotle warned, who must create foreign enemies to demand domestic power as false protectors, and to accuse their opponents of disloyalty. We should extend no military force abroad except via the UN in UN uniforms under UN command. NATO should be disbanded or strictly limited to repelling invasions.
The Founders could not conceive of a population so readily deceived as to permit a large standing military force in time of peace. From Federalist Papers no. 26:
“An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose, not merely a temporary combination between the legislature and the executive, but a continued conspiracy for a series of time. Is it probable that such a combination would exist at all? … It is impossible that the people could be long deceived; and the destruction of the project, and of the projectors, would quickly follow the discovery.”
If Hillary Clinton somehow manages to finagle her way into the office through this bogus claim of “Russian interference” in the presidential election, watch for her to attack Russia using that “use of force authorization” enacted after 9-11. Ridiculous? No more so than all the previously desribed military actions AND her assertion of Russian meddling in our elections. Yet the American people seem willing to swallow anything their leader dispenses.
There is a reason the “war on terror” is without end. It is the gift that keeps on giving, and there is no satiating the avarice and lust for power of the military-industrial complex. Complicit in this age of barbarism is Congress with only rare and fleeting glimpses of profiles in moral courage among its 535 members.
Agree with a caveat:
This mess couldn’t and can’t continue unless with the complicity of the citizenry.
Quagmire? Does anybody believe President Hillary would have seen Bush’s and Obama’s power grabs as anything other than a blessing?
And I’d bet my last dollar the neocons are praying that President Trump will come to embrace them as well. How else are they going to continue the Wars For Israel? Why else would Obama be working to increase Presidential powers even at this late date of his Lame Duck era?
It looks to me that President Trump is going to do what he threatened before his election – turn the Presidency over to his Vice President and such advisers as that VP presumably helped pick. I can’t imagine Pence doing other than consolidating and continuing the Executive Power Grab.
We need periodic essays like this one to remind us of what has been and still is going on in DC.