Trump’s Blank Check for War

Tomorrow a Senate committee will consider a new bill that would solidify the unconstitutional shift in power to declare war from Congress to the White House, as Marjorie Cohn explains.

By Marjorie Cohn

On Monday the Senate Foreign Relations Committee is set to review a bill that would virtually give President Donald J. Trump a blank check to wage war anywhere in the world any time he pleases.

The Constitution places the power to declare war exclusively in the hands of the Congress. However, for the past 75 years, Congress has allowed that power to drift toward the executive branch.

The new bill, should it pass, would effectively make the transfer of the war power from Congress to the president complete. It is hard to imagine a worse time in American history for this to happen.

Why Only Congress Can Declare War

The framers of the Constitution were well aware of the dangers of placing the power to declare war in the hands of the president. Delegates to the 1787 Constitutional Convention overwhelmingly rejected South Carolina delegate Pierce Butler’s proposal that the president be given the power to start a war, according to James Madison’s notes on the congressional debates. George Mason said he was “against giving the power of war to the executive” because the president “is not safely to be trusted with it.”

The framers of the Constitution therefore specified in Article I that only Congress has the power to declare war. Article II states, “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.” Those articles, taken together, mean the president commands the armed forces once Congress authorizes war.

In spite of its exclusive constitutional power, Congress has not declared war since 1942. After that time, starting with President Truman, a series of US presidents committed American troops to hostilities around the world without waiting for Congress to act. Following the debacle in Vietnam, Congress enacted the War Powers Resolution in an effort to reclaim its constitutional authority to decide when and where the nation would go to war.

It is written.

The 2001 and 2002 Authorizations for Use of Military ForceThe War Powers Resolution allows the president to introduce US Armed Forces into hostilities or imminent hostilities only after Congress has declared war, or in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces,” or when there is “specific statutory authorization,” such as an Authorization for the Use of Military Force.

Congress enacted Authorizations for the Use of Military Force (AUMF) in 2001 and 2002, which were directed at al-Qaeda and Iraq, respectively. Although these authorizations were limited, George W. Bush, Barack Obama and Donald Trump have all used them to justify attacking or invading whatever country they wished.

In the 2001 AUMF, Congress authorized the president to use military force against individuals, groups and countries that were seen as having supported the 9/11 attacks. Congress rejected the Bush administration’s request for open-ended military authority “to deter and preempt any future acts of terrorism or aggression against the United States.” 

Nevertheless, the 2001 AUMF has been used to justify at least 37 military operations in 14 countries, according to the Congressional Research Service. Many of them were unrelated to the 9/11 attacks.

Bush utilized the 2001 AUMF to invade Afghanistan and initiate the longest war in US history, which continues unabated. Obama relied on that AUMF to lead a NATO force into Libya and forcibly change its regime, creating a vacuum that ISIS moved in to fill. Obama invoked the same AUMF to carry out targeted killings with drones and manned bombers, killing untold numbers of civilians. And Trump is relying on that AUMF as justification for his drone strikes, which have killed thousands of civilians.

Congress: Shirking its responsibility. (Official White House Photo by Lawrence Jackson)

 

Senate Foreign Relations Committee member Ben Cardin (D-Maryland) stated at an October 2017 hearing that the 2001 and 2002 AUMFs have now become “mere authorities of convenience for presidents to conduct military activities anywhere in the world,” adding, “They should not be used as the legal justification for military activities around the world.”Congress granted Bush the 2002 AUMF specifically to remove Saddam Hussein from power in Iraq. Once that was accomplished, that license ended. So, the 2002 AUMF does not provide an ongoing legal basis for US to engage in military action.

At that 2017 hearing, Defense Secretary James Mattis and then-Secretary of State Rex Tillerson told the Senate Foreign Relations Committee that Trump had sufficient legal authority to kill people in any part of the world he desired. They cited the 2001 and 2002 AUMFs, as well as Article II of the Constitution. With an abundance of political caution, however, Mattis and Tillerson invited Congress to enact a new AUMF with no temporal or geographical limitations.

At his April 12 confirmation hearing, Mike Pompeo, Trump’s nominee for Secretary of State, told Sen. Cory Booker that Trump had legal authority to bomb Syria without congressional approval. Pompeo testified, “I believe that he has the authority he needs to do that today. I don’t believe we need a new AUMF for the president to engage in the activity you described.”

The following day, the US, United Kingdom and France launched airstrikes in Syria. Like Trump’s 2017 Syria bombing, they violated both US and international law. The Trump administration persists in its refusal to reveal the memo that purportedly explains its legal justification for the 2017 bombing of Syria.

Attempts in Congress to repeal and/or replace the 2001 and 2002 AUMFs have thus far been unsuccessful. But Mattis and Tillerson may now get their wish.

A New Authorization

On April 16, 2018, a bipartisan group of senators introduced a new AUMF to replace the 2001 and 2002 AUMFs. Senate Foreign Relations Committee Chair Bob Corker (R-Tennessee) and Democratic committee member Tim Kaine (Virginia) sponsored the proposed legislation. Co-sponsors include Senators Jeff Flake (R-Arizona), Christopher Coons (D-Delaware), Todd Young (R-Indiana) and Bill Nelson (D-Florida).

The 2018 AUMF would authorize the president to use military force, with no limitations, in Iraq, Afghanistan, Syria, Yemen, Libya and Somalia. It would also allow the president to take military action against al-Qaeda, ISIS and the Taliban, as well as their “associated forces” in any geographical location.

And although the president cannot add nation-states to the list of countries he wants to attack, he could circumvent that limitation by claiming that terrorists are operating in a new country, or say a particular country is a state sponsor of terrorism, and he needs to use military force to fight terrorism.If the president wants to add countries or groups to his hit list, he must report to Congress. However, he can withhold whatever information he says is classified, as Elizabeth Goitein, co-director of the Liberty & National Security Program at the NYU School of Law’s Brennan Center for Justice, has noted.

The president must notify Congress within 48 hours of expanding his military operations into countries beyond the six listed in the AUMF or “new designated associated forces.” If Congress doesn’t object within 60 days, the president’s expansion will stand. 

The bill has no expiration date. Every four years, the president would be

Trump: Can act with impunity. (Screenshot from Whitehouse.gov)

required to send Congress a proposal to modify, repeal or maintain the authorization. But if Congress does not respond in 60 days, the AUMF would remain in force. Once again, it places the burden on Congress to take action. Alarmingly, the new bill contains a presumption that the president can decide when and where to make war. It would require affirmative action by two-thirds of both houses of Congress to prevent military action.

In light of Congress’s failure to meaningfully object to presidential uses of military force, including most recently in Syria, a president should have no concern about congressional pushback. He could continue to make war with impunity, cashing the blank check Congress has provided him.

The proposed AUMF would violate the United Nations Charter. The charter requires that countries settle their disputes peacefully, and forbids the use of military force except when conducted in self-defense or with the blessing of the Security Council. The new AUMF would allow the president to attack or invade another country with no requirement that the attack or invasion be conducted in self-defense or with the council’s permission. It would thus violate the charter.

What’s Next?

Corker has scheduled a committee hearing on the proposed legislation for Monday. But even if the bill passes out of committee, there is no guarantee it will get a hearing on the floor of the Senate or the House. Both Senate Majority Leader Mitch McConnell and Republican House Speaker Paul Ryan have shown little appetite for allowing discussion of a new AUMF.

The 2001 and 2002 AUMFs should be repealed, and Congress should not give the president a new one. As George Mason sagely said, a president “is not safely to be trusted” with the power of war.

 This article originally appeared on Truthout. Reprinted with permission.

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and an advisory board member of Veterans for Peace. The second, updated edition of her book, Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues, was published in November. Visit her website: MarjorieCohn.com. Follow her on Twitter: @MarjorieCohn.

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32 comments for “Trump’s Blank Check for War

  1. April 24, 2018 at 10:30 am

    Madeleine Albright should talk, she was quite complicit in US/NATO’s destruction of Yugoslavia under the Bill Clinton administration. And she told Lesley Stahl of CBS in an interview that the deaths of Iraqis because of sanctions against Iraq were “well worth the price of bringing democracy”, or some-such hogwash phrasing for US meddling in that nation, even before Iraq was busted to smithereens by the lesser Bush, who is now getting photo-ops with Bono for “his important work against AIDS in Africa”.

  2. Tim Jones
    April 23, 2018 at 11:28 pm

    Sadly, this should be front page news because it matters and our press is complicit in the move towards Facism or Autocracy. “Why,” Madeleine Albright asks early in her new book, “are we once again talking about fascism?”

  3. mike k
    April 23, 2018 at 10:34 am

    Our problem boils down to how to awaken the masses to a new way of thinking based on peace and cooperation, a way ironically hinted at by Trump during his run for the Presidency. And by the masses, I do not just mean the lower classes, I mean damn near everybody, all the way to the top. The real source of most of our pressing problems is in our minds. Changing our minds will solve most of them very quickly and easily, but continuing as we are now thinking will lead to our self destruction. This changing of minds will not be easy, but we must find ways to do it, before it is too late, if it is not too late already…….

  4. Joe
    April 23, 2018 at 9:14 am

    Other than a formal, full scale war declaration (read: ‘official’ war) the matter has been rendered academic for some time now. We have been at ‘war’ in multiple theaters for the better part of my life without formal declarations, calling it “intervention”, “action”, and a host of other nonsensical names to circumnavigate declarations. There is no reason to believe this will change. ‘War’, being a bad word, has been replaced with softer sounding catch words to represent the same reprehensible outcomes and results. It is simply political correctness for murder and destruction.

  5. j. D. D.
    April 23, 2018 at 8:37 am

    So much for the Democrats’ so-called “resistance.”. Apparently it only pertains to Trump’s efforts to establish a better relationship with Russia and China.

  6. April 23, 2018 at 8:32 am

    Utter insanity as usual, pure aggression running USG. One of my senators sits on Foreign Relations Committee so i’ll call against this, for what it’s worth in this land of the greed and home of the afraid. I suspect the hand of Israel here, the “Friends of Israel” pledge that ktlnt spoke of the other day. John Adams said the government should not “go abroad in search of monsters to destroy” but the monster the USA has become he never could have imagined!

    • Sam F
      April 23, 2018 at 6:32 pm

      Thanks; that was a fine speech by John Adams in 1821, stating that America would use force only to protect her own, would in foreign policy advance principles only through diplomacy and example, and not “go abroad in search of monsters to destroy.” He blames Europe for contributing only new weapons, while America would advance the principles of democracy and natural rights.

      It was the invisible tyranny of economic power that destroyed democracy by gradually controlling mass media and elections, while the middle class celebrated its emergence from poverty. The first nation to successfully oppose Western colonialism became the last to defend it. But we do contribute new weapons, to go abroad in search of monsters to destroy, while opposing those who would advance the principles of democracy and natural rights.

  7. CitizenOne
    April 23, 2018 at 1:25 am

    Giving the reigns to a single person which happens to be Donald Trump is just the ticket for all the folks who, in their exceptionalist view of “America vs.The World” would want to create a global nuclear war. There is a growing group think in Washington favoring “The Sampson Option” where the solution to our present crises is best solved with a decimation of the population of the Planet via nuclear war. No other reasonable course is envisioned such as sustainability programs. The only option for these folks is a planet wide extinction of the human species. Perhaps it is a computer or a robot which will solve all the problems. In any case it is not a human. It might see American money as power. It might be a Wall Street Algorithm which sees plunder as a strategy for consolidating wealth and exerting unlimited power over us all. It might be aliens trying to eliminate us and steal our water. Whatever it is it is not copacetic with life for humans on this Planet.

    How is it that on the eve of Homo Sapiens rise to global domination we are faced with insiders in Washington who plan to place the power to push the button in the hands of a reactive president?

    Trump is their next best candidate for pushing the button barring Hillary Clinton who would fulfill their desire for global war.

    • CitizenOne
      April 23, 2018 at 1:28 am

      Here is a link to The Samson Option:

      https://en.wikipedia.org/wiki/Samson_Option

    • mike k
      April 23, 2018 at 10:20 am

      “Certainly, it would be a global disaster for humanity; a disaster for the entire world,” Putin said, in an interview for a Russian documentary “The World Order 2018,” adding that “as a citizen of Russia and the head of the Russian state I must ask myself: Why would we want a world without Russia?”

      Was this statement by Putin not a version of “if we can’t have a place in the world, then I don’t care if such a world continues to exist.” A version of MAD deterrence. If you threaten to obliterate us, we will destroy all of you also.

      In the central struggle of the human world to develop a ruling paradigm that defines and directs our ongoing culture(s), it is clear that selfishness is winning over selflessness. Capitalism, militarism, individualism (me first) are defeating altruism, cooperation, egalitarianism.

      A telling symptom of this societal trend is our unwillingness and inability to eliminate all nuclear weapons on Earth. A further step would involve getting rid of all our weapons entirely, but at this point the war-conditioned mind would scream impossible! And I would ask why? Then some version of the Hobbesian view of intrinsically violent “human nature” would be trotted out.

      I will cut to the chase: Unless we learn to live together in peace and mutual aid, we will end by destroying ourselves. Which we are now well on the way to doing. This is a forced choice; the many crises we are facing today demand an answer – and soon.

  8. mike k
    April 22, 2018 at 8:56 pm

    Heil Hitler!

    • mike k
      April 22, 2018 at 9:09 pm

      Just practicing to be part of the New Order.

  9. Sam F
    April 22, 2018 at 8:30 pm

    A new AUMF may be intended to fail, as an excuse to thwart movements to revoke the old AUMF.
    Foreign wars are not within the federal powers, so AUMFs not within defensive treaties are unconstitutional.
    A president who acts upon such an AUMF acts unconstitutionally.

    Because checks and balances were poorly designed, the executive has stolen most federal power.
    Because Congressional elections and mass media are controlled by money power, they go along with the abuses.
    Because the judiciary are appointed by the representatives of money power, they do not object to such abuses.

    To restore democracy we need:
    1. Amendments to protect elections and mass media debate from economic power;
    2. Restriction of executive power; checks and balances within federal branches;
    3. Investigation and purging of our corrupt judiciary and Congress;
    4. Monitoring of government officials for corruption;
    5. Regulating business so that oligarchic bullies cannot control economic power;
    6. Re-purposing 80% of our MIC to foreign aid, later making that a distinct agency;
    7. Reforming our secret agencies to end secret political wars and operations.

    Only when we have the power to do that, can we dump AUMFs, join the ICC, dump our law to attack the Hague etc., re-negotiate NATO as strictly defensive, limit foreign wars to UN auspices, repudiate deals with warmonger nations, end our secret wars, and thereby eliminate US warmongering.

    • mike k
      April 22, 2018 at 9:02 pm

      Amen to all that Sam. Now all we need are congress persons willing to retire without excessive wealth from bribes. A dedication to justice for all, and recognition of international law would help too.

      This stuff I’m smoking is way too strong………….

  10. April 22, 2018 at 7:54 pm

    Allow a 48-hour window of opportunity for a “locked and loaded” man who at the United Nations threatened to destroy an entire nation. What could possibly go wrong?

    Peace.

  11. Realist
    April 22, 2018 at 7:42 pm

    This is mind blowing. Essentially, the Congress wants to give Donald Trump the unique prerogative of ending all life on the planet, should he personally decide, via whatever mysterious machinations his mind employs, to launch a nuclear war. This is tantamount to commissioning him to the office of “god.” How ironical that at least half the Congress also want to impeach “god.” And his critics call HIM crazy?

  12. Mild-ly - Facetious
    April 22, 2018 at 5:46 pm

    In fact, the biggest mystery of Trump’s presidency, to me, is the prostrate compliance of former alpha males — Vice President Mike Pence, Sen. Lindsey Graham, Rep. Devin Nunes, and on and on — for nothing.

    What kind of bribes are these men taking, what blackmail are they enduring? Mimi Rocah, a former federal prosecutor who also helped bring down the New York crime families, gave me an answer I didn’t expect: none. The bosses don’t bother with carrots and sticks, they just exploit psychological vulnerabilities.

    The mob is like a cult, she told me.

    Strong and not-so-strong men and women become toadies not because a boss gives them reflected glory or even money — though there may be some of that — but because they crave an idol, a reason for being and the feeling of belonging in … this thing of ours. Whatever that thing is.

    The good news is that that spell can break. “Breaking away … is hard,” Rocah told me, “but it happens all the time.”
    If the consequences they face are severe enough, and especially if they’ve learned their superiors slagged them off, some mob underlings will flip.

    Trump Organization fixer Michael Cohen, in the hot seat after the FBI raided his office and hotel room on April 9, may be in that process now. Cohen could well be terrified of prison or fines. He might also now know that Trump’s loyalty to him is as wispy a concept as ” that thing.” (On Friday, Trump confidant Roger J. Stone said the president treats Cohen “like garbage.”)
    Or maybe Cohen will simply be exhausted by the lies, big and small. If so, he could start by admitting that the statement he’s best known for — “I’m the guy who would take a bullet for the president” — is the biggest hokum of all.

    https://www.pressreader.com/usa/los-angeles-times/textview

    • April 23, 2018 at 12:12 am

      In fact, the biggest mystery of Trump’s presidency, to me, is the prostrate compliance of former alpha males — Vice President Mike Pence….

      No mystery at all so far as I’m concerned. Mike Pence expects to be President, and sooner rather than later. He’ll do anything at all to keep in Trump’s good graces. And you know what? If he does that Saturday Night Live thing with the donkey on live national TV, his fans will understand.

      I see Mike Pence as being as flexible as a soft rope, and will do whatever it takes to take over that Oval Office. Then, heaven help us.

  13. Mild-ly - Facetious
    April 22, 2018 at 5:01 pm

    >>> A NEW AUTHIRATION <<<

    On April 16, 2018, a bipartisan group of senators introduced a new AUMF to replace the 2001 and 2002 AUMFs.

    Senate Foreign Relations Committee Chair Bob Corker (R-Tennessee)
    and Democratic committee member Tim Kaine (Virginia) sponsored the proposed legislation.

    Co-sponsors include;
    Senators Jeff Flake (R-Arizona),
    Christopher Coons (D-Delaware),
    Todd Young (R-Indiana)
    and Bill Nelson (D-Florida)

    ======================

    All Equal Opportunity Imperialists

    In a World of Increasingly Diminishing

    Natural Resources and Commodities

    Lead to Lower Tax for the Rich with

    Tax Havens formed to Hide their Profits

    While the De Humanized poor/

    "Wretched of the Earth" endure

    Continuous Corrupt Annihilations

    Sponsored by NATO Controllers.

    [ how will the meek inherit the earth

    — by total and complete submission

    — and the Welcoming of Death

    — as the entry into True Life??? ]

    • April 22, 2018 at 6:07 pm

      Todd Young (R-Indiana)

      Anymore I expect to see one or both my Senators voting for something awful.

      I don’t know why, but Todd Young wants Forever War.

      He also doesn’t want to do his Constitutional Job.

  14. Joe Tedesky
    April 22, 2018 at 3:33 pm

    911 will be remembered as the beginning of the end of the free and democratic state of America. This pivotal moment in U.S. history is where the U.S. turned itself into an inverted fascist government. All the stops were pulled out, as America’s Shadow Government and it’s totally corrupt Deep National Security State took full reign over the American people. Long ago will be the memory of when the U.S. stood for freedom, and democracy. In the end we American citizens will look back upon these times, as them being the last of the good days gone by.

    • Realist
      April 22, 2018 at 7:54 pm

      You know that Putin has more strings attached to his use of the military than does any American president. He had to request permission of the Duma to deploy, if necessary, troops of the RF in Ukraine should Russia be attacked by Ukraine or Ukraine’s exceptional allies. Fortunately, he never used the power granted him and no RF troops ever crossed the border–contrary to the propaganda dispensed in the American media. When the Minsk agreement was passed and tensions seemed to diminish, Putin asked the Duma to rescind that directive, which they did. He cannot now unilaterally order troops into Ukraine, or anywhere outside the country, without the advice and consent of the Russian parliament. That’s what was stated in the press at the time. Has the RF changed its constitution since then? I think not.

      • Joe Tedesky
        April 23, 2018 at 10:09 am

        Great reporting Realist. After reading your post, it makes one (hardly) wonder to who exactly is the real dictator who runs a fascist government. Joe

    • KiwiAntz
      April 23, 2018 at 3:25 am

      You won’t have anything to look back on, if these lunatics, running your Country get their way?? But I do agree that 9/11 was the catalyst that set all this in motion? Which begs the question regarding the fake news & staged false flag events after 9/11? Was 9/11 just the biggest false flag attack created by these evil bastards to provide this catalyst for the hostile takeover of your Govt by the Deepstate? Food for thought? And with regards to the new law allowing the President to bypass congress & heading straight to war, the sheer gutlessness of your Political class to stop this assault on our Constitution really shows your Country is completely doomed & confirms that your not living in a democracy but a fascist, dictatorship! Trump is your new Dictator in chief, like Hitler & Mussolini!

    • Alexandr
      April 23, 2018 at 5:20 am

      Hey, Joe, Realist, guys. Just dropped by to say “Hello” and “Thanks” from Russia =)) Thanks for your position, thanks for your clear mind, bless You, guys.

      • Joe Tedesky
        April 23, 2018 at 10:15 am

        I told you before Alexandr, our 2 countries are natural allies. Hope all is well with you my friend. Joe

  15. Bob In Portland
    April 22, 2018 at 3:27 pm

    As I recall that change in the Constitution was unofficially done on 11/22/63.

    • Joe Tedesky
      April 22, 2018 at 3:33 pm

      I will agree with that.

    • Bob Van Noy
      April 22, 2018 at 7:07 pm

      I’ll second that guys. Many thanks…

  16. john wilson
    April 22, 2018 at 2:16 pm

    The only thing wrong with this piece is the mistaken idea that the new bill will pass the right to declare war to the white house and the president. It won’t, it will pass this terrible power to the deep state and lunatics like John Bolton. Anyhow, at the present time the president seems to be able to go war anywhere he likes so why does he need it to be formalized? The notion that one man and a couple of his henchmen can start any kind of war, let alone world war three, is frightening. It appears to be the same over here in the UK where bombing another country (for some so called laudable pretext), is now regarded as ok.

    • Realist
      April 22, 2018 at 8:00 pm

      Strictly speaking, you are correct: the Deep State will still require the man in the office as a rubber stamp for their decisions. The sleepwalking public will still assume that its elected leader calls the shots, because that is what the media tools will tell them. Besides, he becomes a convenient scapegoat if the grand plans of world domination by the Deep State come a cropper.

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