Pro Position
The Pro position for this topic will face significant historical precedence that the President of the United States, as the chief executive and commander and chief of the military has broad powers to take actions without prior Congressional approval. This was argued from the earliest days of the founding of the Constitution. However, the historical record will also show, an increasing expansion of the exercise of that power which as led to prolonged multi-year wars which resulted in hardship and pain for millions of Americans. Just look to the Korean conflict in the 1950s, Vietnam in the '60s and '70s and currently the so-called war on terror which is now America's longest war which has been on-going for nearly 18 years with no end in sight. Are these kinds of engagements, what the founding fathers had in mind when Alexander Hamilton wrote in Federalist 23:
Poe (undated):
“The authorities essential to the care of the common defence are these--to raise armies--to build and equip fleets--to prescribe rules for the government of both--to direct their operations--to provide for their support. These powers ought to exist without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them.”
Hamilton and others believed that the "energy" and "secrecy" the executive was essential to defend against sudden attacks, but it is important to recognize that Hamilton's views on giving the executive broad powers to make war was not shared by everyone as the Constitution was being framed.
Poe continues:
[Thomas] Jefferson too differs with Hamilton concerning the executive’s war powers. Jefferson sees the major war-powers as residing with the legislative branch while the power to make peace rests with the executive. In a letter to James Madison in 1801, Jefferson writes, “The constitution has authorized the ordinary legislature alone to declare war against any foreign nation. If they may enact a perfect, they may a qualified war, as was done against France.” He continues, “...The constitution has given to the President and Senate alone the power (with the consent of the foreign nation) of enacting peace. Their treaty for this purpose is an absolute repeal of the declaration of war, and of all laws authorizing or modifying war measures.”
The language of the constitution was a compromise between these views which have persisted into the 21st century, in a time when the weapons of war have the power to annihilate the planet in a matter of minutes. One wonder's if Hamilton could foresee a world in which an unchecked executive could make unilateral decisions with potentially planet killing consequences.
The Scope of the AUMF
The War Powers Resolution of 1973 was a congressional response to the expansion of executive power which resulted in prolonged and bloody wars in Korea and Vietnam. Many historical texts, call these conflicts because they were not officially executed under a declaration of war by the Congress but regardless of what terminology one applies, the scope of the destruction and numbers of deaths had lasting consequences for millions. Clearly congress believed such powers by the president to initiate and maintain a protracted war in a foreign land was something that needed to be reigned-in and guarded. The text of the resolution provides clarity.
Sec. 2. (a)
It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations.
Sec.2. (b)
Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.
Sec. 2. (c)
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
Pursuant to the provisions of this resolution and in response to the horrific terrorist attack of September 11, 2001, President Bush sought and was granted an Authorization to Use Military Force, specifically:
That the President is authorized 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
The wording of the AUMF further clarified that "Nothing in this resolution supersedes any requirement of the War Powers Resolution." It was thus, the AUMF of 2001, the one we are debating now, which authorized the invasion of Afghanistan to hunt down Osama Bin-Laden and the organization known as Al-Qaeda who were assigned responsibility for the attacks.
The 'Spread' of Power
We have learned that the war on terror is a war against ideology more than weapons of mass destruction and the years have seen the emergence of many similar groups inspired by various historical and religious claims which are often solidified by the presence of foreign troops and direct hostilities. We can debate the justifications for these actions by both sides some other day. The point is, these kinds of groups, which often operate freely in regions where sovereign powers are weakest have been seen as legitimate targets under the provisions of the 2001 AUMF.
HRF 2017:
Yet for nearly 16 years, longer than any war in the nation’s history, the executive branch has been using the 2001 AUMF as the primary legal basis for military operations against an array of terrorist organizations in at least seven different countries around the world.
The executive branch’s continued reliance on the 2001 AUMF for military operations far beyond what Congress originally authorized undermines Congress’ important constitutional role as the branch responsible for the decision to go to war. The lack of any sunset provision or reporting requirements in the 2001 AUMF also restricts the ability of Congress to conduct meaningful oversight over military operations and the foreign affairs of the United States.
It was President Obama who despite campaign promises to the contrary, continued the unlimited detention of prisoners at Guantanamo Bay (GITMO), and, while reducing the number of troops in Afghanistan, began to justify direct conflict with ISIS under the authority of the original AUMF. Now President Trump's administration has expanded the scope of the AUMF to justify protracted actions against ISIS in Iraq and Syria and other affiliated groups in other countries.
Torres-Bennett 2017:
“The years after 9/11, it was easier to say this is Taliban and al-Qaeda,” John B. Bellinger III, a presidential legal adviser during the Bush administration and a partner at Arnold & Porter Kaye Scholer, told The Diplomat. “The really big extension was the Obama administration’s legal conclusions that the 2001 AUMF applied to ISIS. That was reached in 2014. ISIS was not part of al-Qaeda, but Congress acquiesced.”
Under the Trump administration, some experts argue that the AUMF is being stretched even further. The U.S. military fired on a Syrian jet in June because it had attacked the U.S.-backed Syrian Democratic Forces, a rebel group ostensibly fighting the Islamic State. This retaliation, however, put the U.S. in direct conflict with the Syrian regime.
Some scholars are now warning that the Trump administration, following the lead of the Obama, may be redefining executive power through the semantics of "temporary battlefields".
Kristian 4-2017:
In early March, The Guardian reported that the White House is considering a secret Pentagon proposal to designate temporary areas of active hostility in which the military could launch what amounts to six-month wars without congressional approval. Under the proposal, once the president signs off on a temporary battlefield, commanders would be given “the same latitude to launch strikes, raids and campaigns” as they now have in active U.S. warzones like Iraq. Protections for civilians would also be scaled back.
These temporary battlefields, as The Guardian dubbed them, are not exactly new; the Obama administration already applied the label to conflicts in Afghanistan, Iraq, and Syria. But the proposal Trump is considering would expand and formalize that decision, stretching the temporary battlefield designation to cover entire countries in which the United States is technically not at war. Despite the bureaucratic language, Trump’s plan, if implemented, is a flagrant perversion of the Constitution, redoubling the worst excesses of the Obama administration and further undercutting the rule of law.
It is interesting that the actions of the presidents throughout the decades appear to not be guided by political affiliation. Democratic and Republican presidents alike have sought to interpret the constitution and congressional law in such a way to justify their actions.
The Human Rights Impact
The expansion of executive power has not proceeded without catching the attention of numerous international human rights organizations. Attention really began to focus on the U.S. as Obama began to substitute direct military action by 'boots on the ground' with the increased use of pilot-less, drones which were used to target 'hostiles' who were often operating is close proximity to non-combatants.
HRF 2017:
Continued reliance on outdated and ill-defined war authorizations that blur the line between war and peace undermine national security, U.S. leadership in the world, and human rights both at home and abroad.
War authorizations confer extraordinary powers on the president—powers that outside of war would amount to egregious violations of human rights. Wartime rules were designed for the unique circumstances of armed conflict between opposing armed forces. As a result, the laws of war sometimes permit killing as a first resort, detention without charge or trial, and the use of military tribunals—actions that are otherwise contrary to basic American values and human rights.
The United States has long been a global leader on human rights, leveraging its example to influence other nations to improve their own human rights records. The United States has rightly criticized other nations for improperly invoking wartime authorities in the name of national security. But the ability of the United States to level this criticism effectively demands that it demonstrate that its own use of wartime authorities is lawful and appropriate. Continued reliance on ill-defined authorities or questionable legal theories that enable the use of wartime authorities outside the lawful boundaries of war not only harms U.S. leadership on human rights, but U.S. national security as well.
Indeed, the arguments have been put forth that such tactics and the protracted use of military force in foreign lands provides incentive for the emergence and growth of the kinds of groups and organizations the U.S. is seeking to eradicate. These claims support the idea that misuse of the current AUMF may be decreasing our national security rather than protecting it.
Erosion of Congressional Power
The concern about executive power arising from the 2001 AUMF is once again growing in congress. This is evident by the fact that the original 2018 budget law, passed by Congress included an amendment, introduced by Barbara Lee to repeal the AUMF. The amendment had support for many others in the House of Representatives. It was later struck from the bill by a Senate committee which believed a spending bill was not the proper vehicle for altering U.S. policy.
Torres-Bennett 2017:
At the heart of the movement to repeal the AUMFs is the growing realization by members of Congress of the legislative branch’s constitutional role to constrain the executive’s military powers. This goes back to the founding fathers building checks and balances into the three branches of government, which is now playing out as lawmakers take a closer look at the sweeping counterterrorism authority given to presidents in the wake of 9/11.
The president, as the Constitution states, is the commander in chief of the military. But the Constitution also gives Congress the power to declare war. The war on terror has spread to parts of the world and to terrorist groups that are outside the scope of the 2001 AUMF, which applies to al-Qaeda and the Taliban.
Recall, it was the War Powers Resolution which was the first significant response by congress to reign in the power of the president in the modern era. It was this limit to presidential authority which required the 2001 AUMF in the first place.
DePetris 2017:
And yet, nearly 16 years later, a war resolution that was designed to combat the terrorist group behind 9/11 has transformed into a carte blanche to fight every Sunni jihadist group on the face of the earth. All the executive branch needs to do is provide a decent enough case that the terrorist group being targeted is connected in some way, shape, or form to al Qaeda or the Islamic State.
The executive branch has been incredibly successful in convincing members of Congress to buy into that logic—knowing full well that the actual text of the 2001 resolution is quite restrictive. The George W. Bush, Barack Obama, and Donald Trump administrations have all taken advantage of their constitutional authority as Commanders-in-Chief to increase their war powers to the detriment of every other branch of government.
The Summary
It is difficult to predict how far the Trump administration will go but it does seem clear Trump is a war-hawk who is in favor of expanding his power to act without congressional approval,
Kristian 4-2017:
Today, the U.S. military is engaged in Yemen, Syria, Libya, and Somalia with neither a formal declaration or an AUMF, and the AUMFs authorizing action in Afghanistan, Pakistan, and especially the fight against the Islamic State in Iraq are strained beyond all reasonable limits. These theaters of the war on terror are, in Washington’s telling, made legal by the 2001 AUMF that preceded the invasion of Afghanistan or the 2002 AUMF that preceded the invasion of Iraq. These documents clearly do not describe—and therefore cannot authorize—the current fight, which deals with territories and organizations substantially unrelated to the 9/11 attackers and the Hussein regime. ISIS was only founded in 2013, AQAP in 2009, and Somalia’s al Shabaab in 2006. How can AUMFs written before such organizations’ existence authorize these fights? Our Congress may have many talents, but seeing the future is not among them.
With this “temporary battlefields” idea, the White House once again strips Congress of what was left of its responsibility for our military, taking unilateral control of foreign policy for the foreseeable future.
The current AUMF has been stretched beyond all reasonability.
DePetris 2017:
Somalia, Iraq, Syria, and Afghanistan are entirely different countries with unique sectarian and ethnic compositions. But they all have one thing in common: the United States is waging military action in each one under the same statutory authority.
For defense hawks, the 2001 Authorization for the Use of Military Force (AUMF), passed through Congress and signed by President George W. Bush a week after the 9/11 attacks with only a few hours of debate, is the legal gift that keeps on giving.
The Final Focus
The Con may argue, that congress has had the ability to check the abuse of presidential power all along. After all, the president remains subject to federal law and congress can always pass a law which, subject to judicial review, further limits executive power. Some may argue by maintaining the power of the purse, congress may simply defund the president's expansion. Nevertheless, the congress remains an elected body which focuses a great deal of attention on political expediency. From 2001 until today, there is a tendency to label any congressional member who opposes the war on terror as soft on terror or national defense. History has proven that congress is very reluctant to pull funding out from under troops which are deployed to foreign countries to carry out orders which are not always popular or politically expedient and these are realities which have been exploited by an executive branch which operates with few restraints.
This rather lengthy card, sums it up nicely.
Kristian 11-2017
First, the White House’s view that a new authorization from Congress is unnecessary to escalate Washington’s global military commitments flies in the face of commonsense interpretation of an unambiguous constitutional rule. The Constitution gives the power to “declare war” to Congress alone. James Madison’s notes from the Constitutional Convention say this means that the president has “the power to repel sudden attacks” on the United States, but the executive cannot “commence war” on its own.
Yet, that is precisely what three consecutive presidents have done under the overbroad aegis of the war on terror.
There are major U.S. military interventions underway in seven countries: Afghanistan, Iraq, Libya, Pakistan, Somalia, Syria, and Yemen and interventions of varying size and purpose in more than a dozen other African nations. U.S. troops are also in battle in the Philippines.
Of all these conflicts, only the activity in Afghanistan, Iraq, and Pakistan is offered any legal endorsement by the 2001 and 2002 AUMFs, and even in those fights American forces are significantly concerned with enemies (most notably ISIS) that simply did not exist when the authorizations were passed. In the other locations, it is utterly implausible to argue that Congress somehow authorized war against enemies that had yet to materialize in theaters of war it never mentioned. Whatever Mattis and Tillerson may say, there is no question Congress has failed in its constitutional duty.
Second, this marks an apparent reversal of President Trump’s past statements of respect for congressional authority. Before taking office, Trump spoke repeatedly about this balance of powers. “The President must get Congressional approval before attacking Syria,” he wrote in one tweet on the subject, adding, “big mistake if he does not!”
For Mattis, too, this week’s hearing demonstrates a new disinterest in following the rule of law on this subject. “Following more than a decade of fighting for poorly articulated political goals,” he wrote in a 2015 article about ISIS, “the Congress needs to restore clarity to our policy.” Likewise, in March, Mattis said an AUMF debate in Congress would be worthwhile, and in his confirmation hearing he maintained that “congressional oversight and appropriations, authorizations, are a critical part of civilian control of the military.”
True, Mattis has never been enthusiastic about an AUMF with meaningful limitations on executive war-making, but his assertion Monday that the power of the purse provides adequate legislative oversight is nevertheless a quantifiable step in the wrong direction. As Sen. Rand Paul (R-Ky.) argued in the hearing, appropriation as a tool of foreign policy oversight simply doesn’t work. “Even in Vietnam, nobody [in Congress] wanted to cut off the money,” Paul noted, “because no one wants to be accused of not giving money to soldiers in the field. So our real, only chance of preventing war is not to initiate the war.”
And third, Mattis is flat wrong in his claim that unlimited war is key to keeping Americans safe. On the contrary, unfettered presidential war-making is itself a serious threat to national security. Paul made this case in an op-ed and he reiterated it at the committee hearing later that day. “When we look at this, we want to ask whether or not there should be limitations, whether or not we are prepared to be involved in perpetual war, or whether we're prepared to let any president involve us in perpetual war,” Paul told Mattis and Tillerson, arguing that limited war forces prudence and encourages the use of diplomacy.
To permit any administration to wage preventive war “anywhere, anytime … against an ideology wherever they perceive it to be” is “very, very dangerous,” Paul continued, because it leads to a costly, “rudderless, “whack-a-mole foreign policy” in which Washington wins lots of little battles at the too-high strategic price of endless military commitments that ultimately offer more risk than defense.
“We're a target everywhere we go,” Paul said, “and, yes, we can defeat anyone, but I don't think, in the end, it ends the war.” The last 16 years have proven this point. The White House may not be too concerned about that, but war-weary Americans most certainly are.
For all these reasons and more...
Friedman & Neuborne 1990:
There are areas where the intentions of the Founders are ambiguous. In matters of war and peace, however, they could not be clearer. The Constitution provides, in Article I, Section 8, that "Congress shall have the power to declare war."
The definitive explanation of the constitutional text, written by Alexander Hamilton in the Federalist Papers in 1788, states: "The President is to be Commander and Chief of the Army and Navy of the United States. In this respect his authority would be nominally the same as that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the land and naval forces. . . ; while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; all of which by the Constitution would appertain of the legislature." James Madison's notes of the debates at the Constitutional Convention in 1787 reveal that when Pierce Butler of South Carolina urged that the President be given the power to initiate a war, the delegates overwhelmingly rejected his proposal. In opposition to the Butler plan, Elbridge Gerry of Massachusetts said that he "never expected to hear in a republic a motion to empower the Executive to declare war." George Mason of Virginia remarked that he was "against giving the power of war to the executive" because the President "is not safely to be trusted with it." Mason maintained that he was for "clogging rather than facilitating war; but for facilitating peace."
The Convention adopted Madison's language that "Congress shall have the power to declare war," language that Madison predicted would "leave to the Executive [ only ] the power to repel sudden attacks."
The President should be reminded that the Founders speak with a single voice on the lack of constitutional authority for him to start a war.
...we urge a Pro ballot.
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Sources:
DePetris, D (2017) Congress Needs To Take Back Its War Powers From The President, The Federalist, June 16, 2017
http://thefederalist.com/2017/06/16/congress-needs-take-back-war-powers-president/
Friedman, L and Neuborne, B (1990), The Framers, on War Powers, New York Time op-ed. November 27, 1990.
http://www.nytimes.com/1990/11/27/opinion/the-framers-on-war-powers.html
HRF (2017) The Problems with the AUMF and How to Fix Them, Human Rights First, June 19, 2017.
https://www.humanrightsfirst.org/resource/problems-aumf-and-how-fix-them
Kristian, B. (2017), Trump's dangerous expansion of executive war powers, Politico, 04/03/2017
https://www.politico.com/agenda/story/2017/04/trumps-dangerous-expansion-of-executive-war-powers-000387
Kritian, B (2017) Trump administration has a dangerous argument for unlimited war, The Hill, 11/06/17 02:20 PM EST
http://thehill.com/opinion/white-house/358968-trump-administration-has-a-dangerous-argument-for-unlimited-war
Poe, L (undated), Executive Power: Hamilton and Jefferson on the Role of the Federal Executive, Reflective Paper,Associate Professor of Secondary Social Sciences, High School Dual Enrollment Program, Santa Fe Community College, Gainesville, Florida. http://thomasjeffersonpersonalitycharacterandpubliclife.org/Lauren_Poe_Executive_Power_Past_and_Present_2.pdf
Torres-Bennett, A (2017), No U.S. President Has Wanted a New AUMF. Congress Is Starting to Disagree. The Washington Diplomat, Sep 6, 2017.
http://washdiplomat.com/index.php?option=com_content&id=15913:no-us-president-has-wanted-a-new-aumf-congress-is-starting-to-disagree-&Itemid=428
When is Con going to be uploaded??
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