The delegates voted to change the clause from “make war” to “declare war,” on the premise that the legislature was ill-suited to make war because it was too slow and made up of too many members. The power to make war was more suited to the president.
The delegates did not, however, think it safe to entrust the president with both the power to declare war and the power to make war. They wanted it to be difficult for the nation to get itself into war. The president was left with the power to defend the nation—to repel attack—but not to commence a war. The framers divided war powers to create a government unlikely to start a fight, but well-suited to defend itself in a fight started by someone else.
Today, the Congress exercises its power to declare war through a process established by the War Powers Resolution of 1973. Under that congressional resolution, the executive must submit a report to the Congress for any case in which U.S. armed forces “are introduced into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances,” and to “terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress … has declared war or has enacted a specific authorization for such use of United States Armed Forces.”
The last declared war was World War II. Since then, the Congress has “declared war” through legislation called an authorization to use military force, or AUMF.
Yet currently, the executive makes war against ISIS even though the Congress has not declared war against ISIS. I speak, of course, about U.S. airstrikes and some ground operations against the terrorist organization, which began as Jordanian terrorist Abu Musab al-Zarqawi’s group Jama’at al-Tawhid w’al-Jihad. In 2004, Zarqawi publicly pledged his group’s allegiance to Osama bin Laden and renamed it al-Qaida in Iraq (AQI) after bin Laden publicly endorsed him as al-Qaida’s leader in Iraq. After Zarqawi was killed in a 2006 U.S. airstrike, his successors renamed AQI as the Islamic State of Iraq. Once the group expanded into Syria, it became known by a range of acronyms and monikers, including the Islamic State of Iraq and Syria (ISIS). The group since then has ended its association with al-Qaida.
In the summer of 2014, the U.S. began military airstrikes against ISIS in Syria. On Sept. 10 of that year, President Barack Obama announced the formation of a broad international coalition to defeat the terrorist group. In his statement, he said:
So [ISIS] poses a threat to the people of Iraq and Syria, and the broader Middle East — including American citizens, personnel and facilities. If left unchecked, these terrorists could pose a growing threat beyond that region, including to the United States. While we have not yet detected specific plotting against our homeland, [ISIS] leaders have threatened America and our allies. Our intelligence community believes that thousands of foreigners — including Europeans and some Americans — have joined them in Syria and Iraq. Trained and battle-hardened, these fighters could try to return to their home countries and carry out deadly attacks …
Our objective is clear: We will degrade, and ultimately destroy, [ISIS] through a comprehensive and sustained counterterrorism strategy …
My administration has also secured bipartisan support for this approach here at home. I have the authority to address the threat from [ISIS], but I believe we are strongest as a nation when the president and the Congress work together. So I welcome congressional support for this effort in order to show the world that Americans are united in confronting this danger.”
Notice that the president stated he would welcome congressional support as a show of American unity to the world. He did not say that he needed congressional authorization to commence a war against ISIS.
To the contrary, the president claimed to have the authority to order the military strikes to “address the threat from ISIS.” What was that threat? The president said the U.S. had no information that ISIS was specifically plotting against the U.S. homeland. He said only that ISIS’s leaders have threatened America and its allies, and that ISIS poses a threat to the broader Middle East, which includes U.S. citizens, personnel and facilities. Was that enough to constitute what the framers might call the president’s authority to repel attack? If not, did he usurp legislative power to commence a war?
Perhaps a clue regarding the president’s uncertainty here was the Obama administration’s February 2015 submission of a proposed AUMF to the Hill that would not only authorize the president to use force against ISIS, but would also place limits on that authority. The administration essentially asked the Congress specifically to authorize hostilities against ISIS.
The Congress refused to act on the proposal, reportedly because there were insufficient votes in the House of Representatives to pass it. Some members saw the president’s proposed AUMF as restricting the military too much, while others complained it did not restrict the military enough. As a result, the Congress let the proposal simply die without a vote.
Despite Congress’s refusal to authorize the use of military force (e.g., “declare war”) specifically against ISIS, military operations against the organization continued. The president had specifically asked for congressional authority and, not getting it, acted as if he had. How could he do so and be faithful to the Constitution? The Department of Defense’s then-General Counsel Stephen Preston would provide the explanation—the president already had congressional authorization.
In April 2015, Preston explained that the executive’s use of force against ISIS was authorized by the Sept. 18, 2001, Authorization for Use of Military Force (2001 AUMF) and the Authorization for Use of Military Force Against Iraq Resolution of 2002 (2002 AUMF).
In a speech at the annual meeting of the American Society of International Law, Preston said:
The 2001 AUMF has authorized the use of force against the group now called [ISIS] since at least 2004, when bin Laden and al-Zarqawi brought their groups together. The recent split between [ISIS] and current al-Qaida leadership does not remove [ISIS] from coverage under the 2001 AUMF, because [ISIS] continues to wage the conflict against the United States [that it entered into when it joined al-Qaida].
The president’s authority to fight [ISIS] is further reinforced by the [2002 AUMF that] authorized the use of force to, among other things, “defend the national security of the United States against the continuing threat posed by Iraq.” Although the threat posed by Saddam Hussein’s regime in Iraq was the primary focus of the 2002 AUMF, the statute, in accordance with its express goals, has always been understood to authorize the use of force for the related purposes of helping to establish a stable, democratic Iraq and addressing terrorist threats emanating from Iraq … [such as] AQI, which then, as now, posed a terrorist threat to the United States and its partners and undermined stability and democracy in Iraq.
In other words, Obama was not commencing a new war, he was continuing to fight a war duly authorized by the Congress. Not everyone agrees.
In 2017, just days after the 16th Anniversary of the 9/11 attacks, Senator Rand Paul (R-KY) introduced an amendment to the National Defense Authorization Act for 2018 that, if passed, would terminate the 2001 AUMF and 2002 AUMF in six months. Paul stated that sunsetting these AUMFs was necessary to force the Congress to, in his words, “do their job” and debate whether the U.S. should be at war with ISIS. Senator Paul argued that, “[w]e have fought the longest war in U.S. history under an original authorization to go after the people who attacked us on 9/11. That war is long since over, the war has long since lost its purpose, and it is long past time that we have a debate in Congress about whether we should be at war. It is the constitutional role of Congress ... Let’s not just muddle on and say, `Oh, the president can do what he wants.’”
Paul’s effort was unsuccessful; the Congressional Record shows the Senate voted 61-36 to table the amendment, meaning they voted not to vote on it.
So twice in less than three years, the Congress was asked to fulfill the constitutional responsibility entrusted to it by the framers when they decided not to give all war powers to the president. The Congress was asked to determine whether the United States should commence war specifically against ISIS, and both times it avoided doing so.
It seems clear from Madison’s notes that the framers not only knew the legislative branch would have a very hard time voting for war, but were betting on it as a check on executive power. That is, even with the president’s war powers limited to repelling attacks, and possibly ordering anticipatory attacks to preempt imminent threats, that would be sufficient for the defense of the nation. The framers did not believe it safe for the executive also to be able to commence wars.
Thus, Congress’s likely inability to vote to start wars would prevent the president from using military force for any other purpose. Hill paralysis, in this case, was seen as a restraint on the executive’s exercise of war powers. If any of the delegates considered that legislative paralysis on votes to commence wars could have the opposite effect of enabling the executive’s use of military force beyond imminent self-defense, they either did not voice it or Madison thought the concern too fanciful to document in his notes. But that seems to have been the effect.
Perhaps what the framers failed to consider is the phenomenon known as “mission creep.” A self-defense mission against an enemy that has attacked and is planning more attacks is clear cut. To do more, by pursuing and destroying that enemy, the executive must seek and obtain an AUMF from the legislature. Even as that mission continues, others ally with the enemy, so the mission expands to pursue and destroy those others too.
Mission creep continues as the executive pursues one of the enemy’s allies in a new part of the world from the original theater of operations. The U.S. action in the new area is opposed by forces in that region that have no alliance with the original enemy, but see the U.S. operations as threatening their sovereignty. The executive authorizes operations to pursue and destroy those forces. And so on.
The framers would say the executive’s ability to expand or extend a mission ends when the expansion would constitute a new war. At that point, the Congress must exercise its power to declare war or the executive must recede. The framers would not say the executive may continue to expand its mission so long as Congress either avoids or is unable to vote “no.” An affirmative declaration of war—passage of a new AUMF—is a constitutional requirement for the expansion. If congressional paralysis clogs our ability to conduct military operations against new groups in new countries, so be it. That is what the framer’s intended; it should be hard to get into war.
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Madison’s notes:
Mr. [Charles] PINKNEY (sic, should be Pinckney) [South Carolina] opposed the vesting this power in the Legislature. Its proceedings were too slow. It wd. meet but once a year. The Hs. of Reps. would be too numerous for such deliberations. The Senate would be the best depositary, being more acquainted with foreign affairs, and most capable of proper resolutions. If the States are equally represented in Senate, so as to give no advantage to large States, the power will notwithstanding be safe, as the small have their all at stake in such cases as well as the large States. It would be singular for one authority to make war, and another peace.
Mr. [Pierce] BUTLER [South Carolina]. The objections agst. the Legislature lie in great degree agst. the Senate. He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it. Mr. [James MADISON [Virginia] and Mr. [Elbridge] GERRY [Massachusetts] moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.
Mr. [Roger] SHARMAN [Connecticut] thought it stood very well. The Executive shd. be able to repel and not to commence war. "Make" better than "declare" the latter narrowing the power too much.
Mr. GERRY never expected to hear in a republic a motion to empower the Executive alone to declare war.
Mr. [Oliver] ELSWORTH [Connecticut]. there is a material difference between the cases of making war and making peace. It shd. be more easy to get out of war, than into it. War also is a simple and overt declaration. peace attended with intricate & secret negociations.
Mr. [George] MASON [Virginia] was agst. giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred "declare" to "make."
On the motion to insert declare — in place of make, it was agreed to. N. H. no. Mas. abst. Cont. no. Pa. ay. Del. ay. Md. ay. Va. ay. N.C. ay. S. C. ay. Geo. ay.
Mr. PINKNEY's motion to strike out whole clause, disagd. To without call of States.
Mr. BUTLER moved to give the Legislature power of peace, as they were to have that of war.
Mr. GERRY 2ds. him. 8 Senators may possibly exercise the power if vested in that body, and 14 if all should be present; and may consequently give up part of the U. States. The Senate are more liable to be corrupted by an Enemy than the whole Legislature.
On the motion for adding "and peace" after "war" N. H. no. Mas. no. Ct. no. Pa. no. Del. no. Md. no. Va. no. N. C. no S. C. no. Geo. no.
Adjourned
Bob Eatinger was the Senior Deputy General Counsel of the Central Intelligence Agency. He served as CIA’s Acting General Counsel from October 2013 to March 2014. Before being named the Senior Deputy General Counsel, he served as CIA’s Deputy General Counsel for Operations from September 2009 to June 2013. He also served on active duty in the United States Navy, Judge Advocate General’s Corps, and retired in 2013 as a Captain with 30 years of service. Eatinger is the founding Principal of SpyLaw Consulting for Business, LLC.
