- - Thursday, July 9, 2015

If Congress could produce a bipartisan resolution expressing strong support for U.S. participation in an effective effort by the world community to bring an end to the barbarity of the so-called “Islamic State,” that could prove helpful in several ways.

It might unite America across party lines, strengthen the backbone of potential allies, and even deter some of the individuals currently engaged (or considering traveling to the region to become engaged) in this monstrous abuse of the most fundamental human values.

On the other hand, if Congress gets bogged down in a partisan confrontation involving placing time limits or other constraints upon our military and micromanaging the conduct of hostilities, it could undermine prospects for an effective multinational coalition, divide America, and encourage our enemies. It could also violate the spirit of our Constitution.

View of the Founding Fathers

There was a broad consensus among our Founding Fathers that when Article II, Section 1 vested the nation’s “executive power” in the President, it conveyed to that office the general management of America’s relations with the external world.

Thomas Jefferson explained in an April 1790 memorandum to President George Washington: “the transaction of business with foreign nations is executive altogether,” and thus belonged to the President. “Exceptions” to this principle were to be “construed strictly.”

Washington shared Jefferson’s analysis with Representative James Madison and Chief Justice John Jay, and noted that both embraced Jefferson’s interpretation—as did Washington himself.

Three years later, Jefferson’s chief rival in Washington’s cabinet, Alexander Hamilton—who had played a key role in drafting Article II during the Philadelphia Convention—used identical reasoning in concluding the power of Congress to “declare war” was an “exception” out of the general “executive power” vested in the President, and thus was to be “construed strictly.”

The power to “Declare War” is an anachronism today

The Constitution does not vest all decisions involving the use of military force in Congress. On August 17, 1787, Madison moved to reduce the power given to Congress in the new Constitution from “make war” to “declare war”—a term of art from the Law of Nations that had a well-understood meaning.

Scholars like Hugo Grotius and Emmerich de Vattel noted such declarations were required only for all-out “perfect” wars, and (quoting Grotius) “no declaration is required when one is repelling an invasion, or seeking to punish the actual author of some crime.” Aggressive wars were outlawed by the U.N. Charter, and no country has clearly “declared war” since World War II.

Like the power given Congress in the same sentence to grant “Letters of Marque and Reprisal” that empowered private ship owners to seize enemy ships on the high seas, a practice outlawed by the 1856 Declaration of Paris, the power given Congress to “declare war” is today an anachronism. Obviously, international law does not alter our Constitution—and if an American president decided to launch an all-out aggressive war, Congress would retain its negative.

“Declarations of war” create relationships between sovereign states, and such a resolution by Congress would, in that sense, convey legitimacy and reinforce ISIL’s fantasy about being the “Islamic State.”


Military operations against ISIL are authorized by the 2001 AUMF

On September 18, 2001, Congress enacted an Authorization for the Use of Military Force (AUMF) empowering the President “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 … .” Target number one was al Qaeda.

The web site of the U.S. National Counterterrorism Center notes: “Al-Qa’ida in Iraq (AQI), also known as … the Islamic State of Iraq and the Levant (ISIL), was established in April 2004 by long-time Sunni extremist Abu Mus’ab al-Zarqawi, who … pledged his group’s allegiance to Usama Bin Ladin.” ISIL thus became a self-nominated target.

Last August, the U.N. Security Council observed in Resolution 2170: “ISIL is a splinter group of al-Qaida.” The two organizations are now quarreling—and if ISIL had withdrawn from the original conspiracy it might well be appropriate to remove it from the target list. But the idea that ISIL should be immunized from attack because it has become far more militant than al Qaeda is absurd. In any event, Congress expressly vested the decision to make that determination in the President. So, the 2001 AUMF clearly covers using military force against ISIL.


Last month the Pew Research Center announced the results of its latest global public opinion polls, disclosing that 72% of those expressing an opinion favored U.S. military action to stop ISIL—and 80% of Americans supported such action.

Adding the voice of a united Congress could be very helpful. But a “declaration of war” would be most inappropriate in this case, and any legislative sanction that might arguably be required in this situation is clearly satisfied by the 2001 AUMF. If Congress is unwilling to take the ISIL threat seriously and set aside partisan differences for the common good, seeking additional authority could prove foolish.

However, it must be kept in mind that sustained hostilities against ISIL would likely require new appropriations for weapons and supplies. For the President to go forward without keeping Congress and the public informed would thus be even more foolish.

Professor Turner holds both professional and academic doctorates from the University of Virginia School of Law, where in 1981 he co-founded the Center for National Security Law. He is the author of two books on the 1973 War Powers Resolution.

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