War Powers Cases, Part 2: The 1973 War Powers Act and the AUMFs

by Mary W Maxwell, LLB

What is the allocation of authority in the US Constitution regarding decisions for the country to go to war? It is simply that all such decision-making rests with Congress per Article I, section 8 of the Constitution that says “’The Congress shall have the power to declare war.”

But isn’t the president the Commander and Chief of the armed forces. Yes, per Article II he is all of that, but so what?  He can command the forces till he’s blue in the face but can’t command them to go to war.

So how about the various attacks on countries such as Libya, Iraq, and Afghanistan – did Congress declare was on them?

Oops, I had better backtrack a bit. I forgot to say that it is of course constitutional for the president to respond in an emergency to an attack on the United States. Getting 535 members of Congress to cast a vote while the missiles are flying through the air towards the West Coast is not practicable. But for this article we are not talking about that sort of attack. We are talking about planned wars.

Legislation

There was never any legislation to limit or expand the US Governments’ war powers prior to 1973.  Since then three laws were enacted:

– the War Power Act of 1973 that was a response to the controversial Vietnam war (quick – does anybody remember what we fought that war for?),

— the 2001 AUMF: Authorization for the Use of Military Force, in which Congress in the wake of “9-11” gave President Bush the OK to attack whoever had caused 9-11 (how’s that for a fertile field!) and

— the 2002 AUMF which expanded the 2001 Act.

There are also two current bills which do not have much chance of passing: The Kaine-Corker bill (bicameral: Corker is in the Senate and Kaine is on the House) that would make AUMF a general fixture, and the Merkley bill in the Senate that would … um… I really don’t want to talk about it. Maybe in Part 3 of this series if I can stomach it.

Let’s just look at the 1973 thing and the two AUMFs.

The 1973 War Powers Act

In 1973 you may recall there were almost daily public protests about the Vietnam situation. There were many lawsuits asking the courts to determine if the war was unconstitutional. The court declined to rule on that.

There was congressional action and this resulted in an apparently sincere attempt to differentiate between what a president can do about war in normal times (namely, nothing) and what he can do in emergencies. Hence the War Powers Act of 1973.

President Nixon vetoed it, but that means it has to go back to Congress to get a 2/3 majority instead of a simple majority (50% plus one vote of those present and voting), in each house. Such was Nixon’s unpopularity in those days that the 2/3 vote was easily obtained.

In essence it gave the president the right to respond with military force to something threatening to the United States but he had to do three things:

— inform the leaders of Congress of his action within 48 hours

— obtain Congressional approval in 60 days, or

— if permission not obtained, must get the troops out of there within a maximum of 30 additional days.

After the law passed the US military was used several times without Congress declaring war.  These  were not related to attacks on the US. I am thinking of such South American conflicts as Grenada, El Salvador, and Panama.

This suggests that the Congress had handed over power to the president. I need to emphasize that this is illegal.. In no instance can any of the three branches of government make a deal to swap anything with another branch. Nor can it abdicate.

Actually the War powers Act did not abdicate. The plan, later codified at 50 USC 1541 section  (c) says:

(c) Presidential executive power as Commander-in-Chief; limitation. 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.

The 2001 AUMF

I believe the 9-11 event was planned by the Powers That Be. I feel sure there were no “Muslim hijackers.” But I shan’t open that matter here. I will just say that when 9/11 happened and the president wanted to attack Afghanistan, he seems to have known that it would be easy to get a congressional authorization for that, and he lost no time seeking one.

Only one “man” in the house, Rep Barbara Lee of California said “Over my dead body” or words to that effect.  Every other congressperson said OK, sure, why not.  The vote was taken on September 14, 2001. Oops, I just looked up C-Span for that date, and saw Rep Mike Pence saying in the legislature:

“At 10am on September 11^th  I stood on the East lawn of the capitol and saw smoke billowing from the Pentagon,  F-16s coursing through the air. The earth beneath my feet shook with a secondary explosion [??] …”

(Note: Rep Ron Paul — Rand’s Daddy — raised the prospect of a constitutionally provided for issuing of Letters of Marque and Reprisal against the terrorists.  Something to think about.)

Here is the text of the AUMF, as a joint resolution:

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the ‘Authorization for Use of Military Force’.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- 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.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

[Spelling mistake there: supersedes, unless there is a legal point I have missed.]

2002 AUMF: More Open-ended, Even Though It Specifies Iraq

Now for the one other legislation in existence that could authorize action in the Middle East.  I say “Middle Est” in that it covers anything that has to do with Iraq and one can always argue that this or that event is related to Iraq’s situation. The wording of the 2002 AUMF, aka The Iraq resolution, dated October 11, 2002 is:

The President is authorized to use the armed forces of the United States as he determines to be necessary and appropriate  in order to:

(1) Defend the security of the United States against the continuing threat posed by Iraq, and

(2) Enforce all relevant United Nations Security Council Resolutions regarding Iraq.

Don’t be surprised to hear that that was the authorization President Trump (proclaimedly)  relied on to strike Syria in April, 2018 because Syria supposedly “used chemical weapons on its own people”  (that old chestnut).

In fact, when you have a Congress that is generally pro-abdication, the president knows he can try anything and get away with it.

The Man with the Snorkel

The dailybeast.com of February 16, 2018 carried this article by Spencer Ackerman, which shows how much mileage you can get out of the 2002 AUMF if you really want. And do, please worry that it is the Department of Justice that is sponsoring this trick:

The man showed up on foot at a checkpoint maintained by the U.S. military’s Syrian allies around Sept. 11, 2017. After walking for two days in a desert area south of Shaddadi, he carried with him a GPS device, over $4,200 in American cash, a Quran, some clothes and, improbably for a desert, a scuba mask and snorkel.

The Syrian Democratic Forces, meanwhile, were fighting fiercely in Deir az-Zour and set up the checkpoint to catch ISIS fighters attempting to flee as civilians. But the man wasn’t trying to flee. Instead, he surrendered, said he was “Daesh”—a derisive slang name for ISIS—and asked to be taken to the Americans.

He also had on him something potentially valuable for the U.S. government: a four-gigabyte thumb drive filled with spreadsheets listing specific ISIS fighters, manuals for bomb-making and interrogation, and more than 10,000 photos and image files.

As first reported by The Daily Beast, the man’s surrender has prompted one of the most significant detention cases in over a decade. He is the first U.S. citizen detained indefinitely without charge as an enemy combatant for alleged membership in ISIS. His name has remained unknown during his now-five-month-long detention, but the American Civil Liberties Union has won a preliminary fight in court to represent him as he challenges the basis for his detention — a fight with far-reaching legal implications.

Late on Wednesday night, the Justice Department for the first time released both its account of the circumstances surrounding his detention and its legal arguments for why it believes it can hold an American citizen without charge in military custody. And those arguments themselves carry several layers of risk — to the man himself, to American civil liberties, and to the war against ISIS. They have some terrorism-law specialists questioning why the Trump administration hasn’t instead attempt a criminal indictment of the man, under the broadly written federal statutes prohibiting terrorism.

That’s because of the specific arguments the government is making. To contend it has the right to hold the unnamed American as an enemy combatant, the Justice Department revealed Wednesday, it is relying in part on the 2001 congressional authorization against al Qaeda, which long predated ISIS, and the 2002 congressional authorization of war against Saddam Hussein, who has been dead for over 11 years.

It’s worth noting that the 2002 AUMF justified a war in Iraq, not in Syria, where this American was captured.

— Mary W Maxwell is the appellant in Maxwell v. Trump, which has to do with unauthorized use of nuclear weapons