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Tell Congress: Curb the President’s War Powers

The attack on Syria was an open violation of international law and of the U.S. Constitution.

"Rather than authorizing more presidential war making, Congress might sensibly end our misadventure in Afghanistan and Syria, and halt our involvement in Saudi Arabia’s dismemberment of Yemen." (EPA/ANDY RAIN)

"Rather than authorizing more presidential war making, Congress might sensibly end our misadventure in Afghanistan and Syria, and halt our involvement in Saudi Arabia’s dismemberment of Yemen." (EPA/ANDY RAIN)

This week, the Senate will decide whether to confirm CIA Director Mike Pompeo as Secretary of State. Pompeo is a key figure in Trump’s new war cabinet, along with National Security Advisor John Bolton and Gina Haspel, who he wants to take Pompeo’s place the CIA.

The Senate is also likely to move towards a new Authorization for the Use of Military Force (AUFM), which grants congressional authority to expand the global war on terror. What remains to be seen is whether Congress will finally curb presidential war making.

Unrestrained Power

This president – like his predecessors – claims the right to make war unilaterally, unrestrained by international law or the Constitution. The recent U.S. missile attack on Syria to punish the Assad regime for an alleged use of chemical weapons on civilians reveals the scope of presidential contempt for the law.

This attack on Syria was an open violation of international law and the United Nations Charter, the centerpiece of the “rules-based” order the U.S. claims to uphold. This Charter prohibits “the threat or use of force” against a sovereign nation, unless the attack is authorized by the U.N. Security Council, an act of self-defense, or consented to by the sovereign government.

None of these apply here. Some argue the attack was justified by the “responsibility to protect” populations from atrocities endorsed by U.N. member nations since 2005, but that too permits intervention only with U.N. sanction.

Constitutional Contempt

The attack is also an open violation of the U.S. Constitution, which lodges the power to make war in the Congress and not the Executive (Article 1; Section 8). Congress has provided no authority for the invasion of Syria.

The 2002 Authorization to Use Military Force (AUMF) authorizes actions against the organizations that perpetrated the 9/11 attacks and their offshoots. No contortion of logic can stretch it to include the Assad regime in Syria.

The secret legal rationale – if there is one – would likely be based on the rationale invoked by both Obama and Trump for earlier strikes in Syria: that as Commander in Chief, the President may use military force to uphold regional stability and vital international norms in the national interest.

This contention, as Jack Goldsmith, former attorney in the Office of Legal Counsel under George W Bush, concludes, “places no limit at all on the president’s ability to use significant military force unilaterally.”

Dangerous Instability

That our “stable genius,” the impulsive, erratic, ignorant Donald Trump, claims the power to use the military anywhere at any time that he might decide is frightening enough. It becomes terrifying when combined with the views of the war cabinet he now seeks to assemble.

The Syrian strike coincided with uberhawk John Bolton assuming his post as National Security advisor to the president. Bolton’s views – and treatment of colleagues –are so extreme that a Republican Senate refused to confirm his nomination by George W. Bush to be Ambassador to the UN. Bolton was not only part of the effort to sell the “war of choice” on Iraq, but remains a defender of what is clearly the greatest U.S. foreign policy debacle since the Vietnam War.

Having learned nothing from that calamity, he remains a vociferous advocate of preventive war against both North Korea and Iran. He openly scorns diplomatic achievements like the Paris Climate Accord or the multilateral Iran nuclear weapons agreement. He advocates escalating U.S. involvement in Ukraine, and a more muscular policy against both Russia and China.

Calling for War

Pompeo also has called for preventive military assault on North Korea and Iran. He too scorns the Iran Agreement and the Paris Accord. His history of slurs against Moslems, and dangerously wrongheaded statements that the U.S. is engaged in religious war between Islam and Christianity. should on their own disqualify him.

While he presented himself as an advocate of “relentless diplomacy” in his Senate conformation hearings, he also admitted, under questioning by Senator Jeff Merkley, that he thought the president had the power to make war without the mandate of Congress.

Torture and Deception

Trump has also nominated Gina Haspel to take Pompeo’s place as director of the CIA. Haspel was notoriously involved in running one of the CIA’s torture sites in Thailand, where water boarding among other tortures took place. Then, in direct violation of orders from the White House, she pushed the destruction of videotapes of the torture.

Her defense is the classic plea put forward by Adolf Eichmann and other Nazi war criminals after World War II: that she was “just following orders.” Not surprisingly, her nomination has been touted by a bipartisan group of former spies and operatives, and opposed by over 100 former admirals and generals, because “We did not accept the ‘just following orders’ justification after World War II, and we should not accept it now,”

This is where we are headed: An impulsive and bellicose president, empowered to use force on his own authority advised by the advocates of aggressive war with a covert arm headed by a practitioner of torture.

What the Founders Wanted

This is precisely what the founders of the country sought to protect against by giving Congress the power to declare war. James Madison noted that the power to declare war is “fully and exclusively vested” in the Congress because the “executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.”

Sadly, presidential assertion has been aided and abetted by craven congressional abnegation. Particularly since 9/11, most legislators would prefer to duck and cover. They don’t want to be held responsible if a terrorist attack comes after they vote against intervention or blamed when an intervention they supported goes bad.

Limiting Force

Current halting efforts to provide some limit on the use of force in the so-called global war on terror have been largely a joke. Senator Tim Kaine courageously denounced Trump’s Syrian missile attack as illegal. Yet he joined with Senator Corker to draft the revised Authorization for the Use of Military Force, which would essentially, as Rep. Barbara Lee warns, give the president a blank check for attacks across the world.

This new AUFM authorizes the use of force against a broad range of groups by name, and then allows for the Executive to designate additional groups and countries – even in secret – on its own authority. It does not demand public statement of what groups and countries against which the U.S. is making war.

It does not require approval before new groups or countries are added to the list. To remove a group or country, the Congress must overcome a veto with a supermajority. The measure does not even mandate reauthorization after a few years. This isn’t Congress reasserting its powers; it is Congress fecklessly signing them away.

The reality of presidential war making has been wars without end and without victory. Afghanistan is now in its 17th year. US troops are in Iraq after 15 years. The Syrian civil war has been ongoing for seven years; the US has been bombing there every day for more than 3 ½ years. The US is now expanding its intervention in Africa. US Special Forces have been deployed to an astonishing 70 percent — some 138 – of the countries in the world – 137 in the first six months of 2017.

Restless Voters

Both voters and the members of Congress are growing restless. 84 members of Congress, including some Republicans, wrote the president warning that a strike on Syria, without prior congressional authorization, would be a violation of the Constitution.

The effort by Republican Senator Mike Lee and Democratic Senator Bernie Sanders to end U.S. support of Saudi Arabia’s destruction of Yemen gained 44 votes in the Senate. New efforts to bring the troops back from Afghanistan and Syria are in the works.

A sensible first step in reclaiming congressional power would be to reject the nominations of Pompeo and Haspel, and deny Trump his war cabinet. That would put the congress on record against the advocate of aggressive war and the practitioner of torture.

Rather than authorizing more presidential war making, Congress might sensibly end our misadventure in Afghanistan and Syria, and halt our involvement in Saudi Arabia’s dismemberment of Yemen. None of this is likely unless Americans begin to hold Congress accountable.

Legislators need to hear public opposition to Pompeo and Haspel. The 2016 elections –both primaries and general –offer an opportunity to demand that candidates make clear where they stand on getting out of the endless wars in the Middle East and curbing the lawless presidential power to make war.

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Robert Borosage

Robert Borosage

Robert Borosage is the founder and president of the Institute for America’s Future and co-director of its sister organization, the Campaign for America’s Future.

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