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Will Congress Write the President a Blank Check for War?

By       Message Marjorie Cohn       (Page 1 of 3 pages)     Permalink    (# of views)   2 comments

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Will #Trump kiss off his #AmericaFirst and go to war?
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This coming Monday, April 23, 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.

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Why Only Congress Has the Power to 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.

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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.

The 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.

The 2001 and 2002 Authorizations for 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.

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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.

Rep. Barbara Lee (D-California), the only member of Congress to vote against the 2001 AUMF, was prescient. In July 2017, Lee said, "I knew then it would provide a blank check to wage war anywhere, anytime, for any length by any president." Lee told Democracy Now! in 2016 that she knew the 2001 AUMF "was setting the stage and the foundation for perpetual war. And that is exactly what it has done."

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. An updated edition of her book, "Drones and (more...)
 

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