Congress Declared War on Sept. 14, 2001

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On Sept. 14, 2001, the U.S. Congress in effect declared war when it passed the Authorization for Use of Military Force (AUMF) as a joint resolution. The vote was overwhelmingly one-sided. In the House, the vote was 420 Ayes, 1 Nay, and 10 Not Voting. In the Senate, the vote was 98 Ayes, 0 Nays, and 2 Present/Not Voting. Rep. Barbara Lee was the nay vote in the House.

One may argue about the wisdom of this measure and the logic of this measure. One may evaluate the quality of the measure as law. One may argue about the conduct of the military operations under the Executive that has been enabled by this measure. One may evaluate the ramifications for the U.S. government, for the world, and for Americans. Indeed, one may form innumerable opinions from many perspectives about this measure. But one cannot deny that this AUMF set in motion the ongoing war on terror that is being conducted by the U.S. government.

The Obama administration has made an effort to change the terminology describing the war. For example, it doesn’t like the words “war on terror”, and it has used substitutes. This effort is not central to the conduct of the military operations enabled under this resolution. As long as the resolution remains in place, its existence is what is central.

The Obama administration was critical of how the Bush administration was conducting military operations. After it took power, it changed the military operations in Iraq and Afghanistan. It also began to use more drone attacks and to use them in countries that Bush had not. These changes in military operations are also not central to their existence. What matters is that the resolution authorizes military operations of broad scope, in ways to be determined by the President. What matters is that this resolution exists at all.

The existence of the war on terror is prior to the conduct of the war. The conduct is malleable and can take many forms. As long as the resolution exists, the war will be conducted somehow. The conduct is important primarily as it may influence the public’s opinion and the opinion of the Congress that such a war should exist at all, for there is no way to end this war without passing a resolution that ends it. In other words, if the conduct is such that the costs are seen to be vastly outweighing the benefits, then the chances of ending the resolution rise.

One may argue about the constitutionality of the resolution, but if it were ever tested the odds are overwhelming that the resolution’s constitutionality would be upheld. It is inconceivable that a Supreme Court would overturn the power to declare war that is vested in the Congress.

The American public is stuck with this war or even approves of it until large numbers of voters decide that the results don’t justify the costs.

Congress funds the war. It exercises oversight of the operations. At its discretion, it or any of its members can mount an effort to alter the course of the war or even end it altogether. The American people elect representatives every 2 years. If candidates who want to end the war can get party nominations and get elected, voters will be able to influence the existence of this war.

This resolution exists legally because Congress has the power to declare war. There may be no manual that describes what a war declaration should look like or that defines what a war is, but those uncertainties are also not central to the existence of this resolution. Under the U.S. Constitution, Congress has the power to declare war, however ill-defined it may be and however ill-defined the enemy is. That’s the fact that will not go away, no matter what debates concerning the war’s conduct occur. Specifically, the substitution of drones for ground forces is not disallowed under the AUMF. If the President identifies Americans as terrorists, the AUMF suspends their rights. They can be assassinated.

Let’s explore that further. The AUMF states

“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.”

The President has been given a free hand in identifying the “enemy” or “enemies”. All he has to do his tie a person to an “organization” such as al-Qaeda. There is no exception made for American citizens. There is no distinction between persons on American soil or in other countries.

The phrase “necessary and appropriate force” does not constrain the President. There is nothing in the AUMF that suggests that killing an American on American soil cannot be regarded by the President as “necessary and appropriate”. In this situation, any President will use his discretion, conditioned on how he thinks such a killing will affect public opinion about his conduct of the war.

There is nothing unusual in Eric Holder or other administration spokespersons trying to keep their death-dealing options open. They have been authorized by the Congress to use lethal force if they so choose.

The point I am making is that the AUMF itself is what needs to be questioned, but behind that is the even more basic provision in the Constitution that gives a Congress the power to declare war, and of course the power to tax in order to fund a war.

In a condition of war, civil liberties tend to get overridden. The current war on terror, now over 11 years old, shows this. For any number of reasons, this war shows no signs of ending. It is actually spreading to more lands. The connection to an “organization” or “persons” that are in any way linked to 9/11 is now exceedingly remote, but the use of military force continues. This is not logical. It is not legal. It’s happening nonetheless because the pro-war forces are driving it. There is no apparent political force that is stopping it. Under these conditions, the prognosis for civil liberties is anything but good.

The power to tax that Congress was given in the Constitution was certainly a very bad idea, and it is not unrelated to the power to declare war. Has Congress ever seen a war that it didn’t like? American history is one long catalog of war after war after war. Congress has now foisted upon us a never-ending war.

It is all well and good to debate drone warfare and the killing of Americans overseas or on American soil. However, it’s my opinion that these debates are not searching enough. They do not go to the heart of the matter, which is that Congress has the power to declare war and did it on Sept. 14, 2001. That power needs to be questioned in the most serious and searching way. The misuse of that power has been endemic in American history. That is but one facet of what should be a broad public debate and examination of the even more fundamental issue, which is making citizenship or membership under the Federal government an optional matter.

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