This article was last updated on April 16, 2022
As we know, the men that framed the U.S. Constitution were aware that putting the power to declare war in the hands of one man was dangerous. As such, delegates to the 1787 Constitutional Convention specified that only Congress has the power to declare war under Article 1 Section 8 as shown here:
“The Congress shall have power…
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.” (my bold)
Under Article II Section 2, the President of the United States of America:
“…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.”
Congress, even with the powers available to it, has not declared war against any foreign nation since 1942. That begs the question, how is it that the United States has ended up at war in Korea, Vietnam, Afghanistan and Iraq if Congress has not declared a state of war? In 1973, Congress enacted the War Powers Resolution (aka the War Power’s Act) as reflected in Title 50, Chapter 33, Sections 1541 to 1548 in the aftermath of the Vietnam War debacle, which states that:
1.) the collective judgement of both Congress and the President will apply to the introduction of U.S. Armed Forces into hostilities.
2.) the President must consult with Congress before introducing U.S. Armed Forces into hostilities or situations where hostilities are imminent.
3.) the President must comply with reporting requirements when he introduces U.S. Armed Forces into existing or imminent hostilities, for example, within 48 hours, he must submit in writing a report to the Speaker of the House and the President of the Senate a report outlining the circumstances necessitating the introduction of U.S. Armed Forces and the scope and duration of the involvement.
The goal of the 1973 War Powers Resolution was to retake the power to declare war away from the President and put it back into the collective hands of Congress.
Unfortunately, the Executive Branch found yet another way around the law. On September 18, 2001, one short week after the attacks of September 11th, Congress passed Public Law 107-40 which states the following:
Note that Congress, through the new Authorization for Use of United States Armed Forces (AUMF) in Section 2 states 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 harboured such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
In this case, the AUMF was targeting nations, groups and individuals that were seen as supportive of the September 11, 2001 attack on U.S. soil. This AUMF was initially used to invite Afghanistan and to justify the American attack against the Taliban and al Qaeda and basically put all of the power to declare war into the Oval Office.
Again, in 2002, House Joint Resolution 114 was passed and became law. Once again, this Authorization for Use of Military Force (AUMF) was enacted, this time, with a specific target; Iraq. Among other things, it authorized the following:
“Authorizes the President to use the U.S. armed forces to: (1) defend U.S. national security against the continuing threat posed by Iraq; and (2) enforce all relevant Security Council resolutions regarding Iraq.”
With that background on how declarations of war can now be undertaken when a President utilizes an Authorization for Use of Military Forces (AUMF), let’s look briefly at a study by the Congressional Research Service showing how AUMFs have been abused since 2001 and used as a justification for military operations in nations that are not even part of the September 11th terrorist attack. According to the authors of the study, there have been 37 occurrences where the administrations of either George W. Bush or Barack Obama disclosed publicly that they had referred to the 2001 AUMF in connection with initiating or continuing military actions, including detentions and military trials.
Here is a partial list of the 18 occurrences when AUMFs were used during the Bush Administration:
September 24, 2001 – deployment from Central and Pacific Command
October 9, 2001 – combat action in Afghanistan
September 20, 2002, March 20, 2003 and September 19, 2003 – combat and deployment action in Afghanistan, Philippines, Georgia, Yemen, Djibouti, conducting detention operations in Guantanamo Bay, maritime interception operations in the Central and European Command areas
March 20, 2004 – continuing combat operations in Afghanistan, continuing detention operations in Guantanamo Bay, working with friends and allies around the globe, continuing operations in Georgia, deployment to Djibouti, Kenya, Ethiopia, Yemen and Eritrea, maritime interception operations in the Central, European, Northern, Pacific and Southern Command areas
November 4, 2004 – added military operations in Iraq to aforementioned operations
There were additional AUMF occurrences in May 2005, December 2005, June 2006, December 2006, June 2007, December 2007, June 2008 and December 2008.
In total (up to May 2016, the date of the CRS report), there were 19 occurrences during the Obama Administration, most of which include the operations outlined in the Bush occurrences. These notifications took place in June 2009, December 2009, June 2010, December 2010, June 2011, December 2011, June 2012, December 2012, June 2013, December 2013 and June 2014. The September 23, 2014 notification included a new target as shown here:
This is how the President was able to justify the use of U.S. forces in the battle against ISIS.
Basically, thanks to Congress and its 2001 Authorization for the Use of Military Forces, three presidents have now been given the power to engage U.S. military personnel in overseas campaigns under the guise of the fight against global terrorism. As though this were not enough, a new 2018 version of the original AUMF has been introduced to replace the 2001 and 2002 versions which would allow the president to order the use of military force against the Taliban, al Qaeda and the Islamic State in Iraq and Syria along with:
1.) al Qaeda in the Arabian Peninsula
2.) Al Shabab
3.) al Qaeda in Syria including Al Nusrah Front
4.) the Haqqani Network
5.) al Qaeda in the Islamic Maghreb
It also allows the president to order military operations in “new foreign countries” which means countries other than Afghanistan, Iraq, Syria, Somalia, Yemen or Libya.
As you can see from this posting, the original framers of the Constitution clearly wanted to reign in the powers of the president when it came to declaring war. Since the attack of September 11, 2001, Congress, through the use of Authorizations for the Use of Military Forces, has abdicated its responsibility for declaring war, giving the president a blank check when it comes to ordering U.S. military personnel into combat.
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