How presidents and Congress wage war may be shifting

Congress may reassert some military authority
Posted at 12:57 PM, Jun 20, 2017

Ever since the 9/11 attacks, the power to use military force against certain enemies has rested with the president. The Authorization of Military Force granted President George W. Bush the authority to target “nations, organizations or persons” who “aided” in the attacks on the Pentagon and World Trade Center.

“When I voted in 2001 to authorize military force against the perpetrators of the Sept. 11 attacks, I had no idea I would be authorizing armed conflict for more than 15 years and counting,” Sen. Jeff Flake, R-Ariz., said in introducing a new AUMF resolution. For example, President Obama’s war against ISIS that began in 2014 had no authorization from Congress, even though the origins of ISIS traced back to well after 9/11.

Tuesday, the Senate Foreign Relations Committee held a hearing on Flake’s and his co-sponsor, Democrat Tim Kaine’s, new AUMF. They are pushing to authorize the use of military force against Islamist terrorist organizations, but they also want to establish a process for congressional oversight of what persons or forces can be “associated” with ISIS, Al Qaeda and the Taliban and where fighting against those forces can occur beyond Afghanistan, Somalia, Syria, Iraq, Yemen and Libya.

“It is past time for Congress to voice its support for the war against ISIS … and for Congress to reassert some of the authority it has abdicated over the years,” Flake said.

The new AUMF also requires the president to report to Congress with a strategy to protect the U.S. from ISIS, AL Qaeda and the Taliban.

“It is our constitutional duty in Congress to authorize military action, yet we’ve stood silent as administrations have stretched the 2001 AUMF far beyond its original purpose,” Kaine said.

This debate over who has authority to wage war, the president or Congress, goes back to the founding of the country. Article II of the Constitution says that the president is the commander in chief of the armed forces. But Article I of the Constitution gives Congress, and Congress alone, the authority to declare war and to appropriate the funds to wage it.

“We tend to think that the conduct of war is controlled by the commander in chief, which is the president,” says David Barron, who worked in the Office of Legal Counsel at the Department of Justice and advised President Obama on the use of military force.

Barron, who has written a new book titled “Waging war: The clash between Presidents and Congress, 1776 to ISIS,” said in an interview on the DecodeDC podcast “that commanders in chief are also often struggling with and in conflict with Congress, which has their own ideas about how war should be conducted. And the story of the country with respect to war is that to and fro between Congress and the commander in chief over the conduct of war.”

What defines when something is a war and when it isn’t, or when it needs congressional approval wasn’t an issue for a long time because president’s went to Congress for a declaration of war or legal authority whenever they thought it was necessary to take the country into war. But all that changed with President Harry Truman.

“The last declaration of war was World War II and since that time there's never been anything that has been a declaration of war,” Barron said. “Truman in some ways is the bridge president that shifts from a world in which the way we wage war is often under actual declarations of war to a world in which the wars that will be waged by the country will never be under the auspices of a formal declaration of war. Instead, it will be under either assertions of the president's right to send troops into hostile conditions on his own or pursuant to statutes that simply are styled as authorizations for the president to use military force.”

A new AUMF may shift some of that authority to use military force back to Congress.