War Powers:

Is the US president’s authorization to use military force coming to an end?
War Powers:
July 8, 2021

The Democratic party has been trying to modify the authorization for use of military force, which presidents from both parties have used for two decades to justify the use of military force abroad.  On 23 March 2021, the House Foreign Affairs Committee held a hearing on this matter entitled “Reclaiming Congressional War Powers.”

Three legal and military specialists testified during the hearing: Jack Goldsmith, a professor at Harvard Law School and former assistant attorney general in the Office of Legal Counsel of the U.S. Department of Justice; Oona Hathaway, professor of law at Yale Law School and former special counsel to the general counsel to the U.S. Department of Defense, and Bob Bauer, a professor and scholar at New York University School of Law and former White House counsel. The hearing included a discussion of issues pertaining to the two authorizations for use of military force from 1991 and 2002, and potential avenues for reforming the authorization for use of force, which included the following:

Issues with the Authorization for Use of Military Force:

Oona Hathaway highlighted the following issues to the committee as the most important problems with the authorizations for use of military force from 1991 and 2002:

1. The goals of the two authorizations have been achieved: The 1991 authorization enabled former President George Bush Sr. to use military force pursuant to UN Security Council Resolution 678, which aimed to force Iraq to withdraw from Kuwait no later than 15 January 1991.

There was a second authorization for use of military force issued in 2002 in response to concerns that Iraq held weapons of mass destruction which could pose a direct threat to the US and its allies. This authorization enabled President George W. Bush to use “all necessary and appropriate” military force to defend US national security against ongoing threats from Iraq and to enforce all relevant Security Council resolutions.

The objectives of the two authorizations were achieved: Iraq was expelled from Kuwait, and the UN resolutions long ago expired. Iraq does not currently pose a threat to the US or its allies. Although some new terrorist threats emerged in Iraq after 2003, these are dealt with through the powers stipulated by Congress relating to the 2001 authorization for use of military force.

2. Ongoing misuse of the two authorizations: The two authorizations for use of military force from 1991 and 2002 left the door open to misuse and did not provide presidents with any legitimate basis for military action. During the discussion of the directive for the fatal airstrike against Qasem Soleimani at the beginning of 2020, members of the US administration had improperly drawn upon this authorization to justify its legality, given that Soleimani was an Iranian, not Iraqi, officer. Therefore, one cannot say that the use of force against him occurred in order to defend US national security against the threat posed by Iraq.

3. Proposals to limit but not repeal the counter-terrorism authorization: The 2001 authorization for use of force against terrorists was issued only days after the horrific attacks on the US on 11 September 2001. The authorization was vague because the country was uncertain which group was responsible for the attacks. Both Democratic and Republican parties have long agreed that the authorization for the use of force against terrorists from 2001 had expired, and some have argued it should be repealed without any replacement. However, this could lead to the president using his Article 2 powers as commander-in-chief to carry out counterterrorism operations as they deem necessary. Congress could clearly define the limitations of these counterterrorism powers and establish laws to better check uses of force by the president that go beyond that explicit scope.

4. Need to set a time limit for the authorization: The new authorization for use of military force must include conditions required for reauthorization. Congress must be involved in the process of determining military operations abroad as per its constitutional authority to do so. This authorization of powers cannot be indefinite, especially because the constitution stipulates such a condition: the first article of the constitution prohibits Congress from “supporting armies” for longer than two years. The objective of this rule was to ensure that every member of Congress, at some point during their term of office, would have the opportunity to contribute to decisions regarding whether any existing military activities would continue.

5. Need to define “hostilities”: The new authorization for use of military force needs to define “hostility,” and Congress must be directly involved in determining when the country will go to war and against whom. It needs to be made clearer that fighting in a war does not include expanding the scope of war unless specific authority to do so is granted by Congress.

Relatedly, the House Foreign Affairs Committee must be informed of the progress of the military operations, taking into account that wars do not have set endpoints, and therefore must have a clear and achievable goal. The term “hostilities” needs to be revisited and clearly defined because it leaves the door open to different interpretations. For example, during the US military intervention in Libya, the Obama administration argued that it did not need congressional approval to continue the military operations for longer than 60 days, because US military operations there did not constitute “hostilities.”

6. Establishing a clear mechanism for challenging interpretations of White House war resolutions: There needs to be an effective congressional mechanism to challenge interpretations of the revised resolution from the executive branch, which has for a very long time held a virtual monopoly on legal interpretations of war-making powers. This is partly due to the control that the Office of Legal Counsel in the Department of Justice has held over executive powers, in its capacity as an arbiter of the law, and through its issuing of memos on disputed issues regarding war powers.

Parameters for the Use of Military Force

In his testimony, Jack Goldsmith focused on potential avenues for reforming the authorization for use of military force, which can be summarized with the following points:

1. Determine what is meant by “national interests”: In recent years, Congress has actively used its constitutional authority on war powers. However, it has quickly lost much of its control over this, because the executive branch has very broadly interpreted the second article of the constitution regarding “national interests” to include protecting and assisting its allies, preserving regional stability, preventing humanitarian disaster, supporting the United Nations, and engaging in self-defense.

This interpretation of the second article enables the president to use US military force around the world for long periods of time and in any context its wishes, without approval from Congress. This interpretation also allows for introducing large numbers of ground troops in international conflicts without congressional approval. Some opinions go even further than these expansive interpretations.

2. Addressing the problem of “broad interpretation” in the use of force: The executive branch’s interpretation of the 2001 authorization for use of military force (issued in response to the September 11 attacks) and 2002 authorization on Iraq claimed that this use of force was necessary for counterterrorism efforts. This does not align with the original objectives for which the authorization was granted.

3. Congress needs to reclaim its constitutional war powers: The executive branch has controlled constitutional war-making powers for many reasons, including the increased scope of US responsibilities globally after World War II; the rolling back of congressional limitations on their use; an unwillingness on the part of some members of Congress to take responsibility for the consequences of war resolutions; and the need to reach a majority in order to check the president’s unilateral use of force. However, Congress holds significant powers to exert control over war-making if it chooses to use them. These have been in place since 1804, when the Supreme Court ruled in favor of the restrictions that Congress had imposed relating to the conditions under which the US Navy could seize enemy ships during the war with France.

The Office of Legal Counsel in the Department of Justice has provided for the unilateral use of force. However, Congress has the power to appropriate funds for military forces abroad, as it previously did for US forces in Lebanon and Somalia. Congressional funding restrictions were also a direct cause of the end of the Vietnam War.

4. Need to replace and repeal some presidential authorizations: Congress’s chief priority needs to be on repealing the 2001 authorization for use of military force and replacing it with a law dealing with the war against terrorism. The authorization for use of military force from 2002 needs to be repealed, because it was originally issued without a clear understanding of who was responsible for the 11 September 2011 attacks, and described the enemy in broad and general terms without specifying a timeframe or geographic scope. Congress also needs to replace the law authorizing the use of military force from 2001 with a new legal system for the war against terrorism.

5. Continuously updating the definition of “enemy”: Almost twenty years after the September 11 attacks, the reforms to the authorization need to specify who the “enemy” is. There needs to be a mechanism for clarifying and updating the list of entities against which the president can use military force in the future. Likewise, Congress needs to grant explicit permission to use force against forces linked to military organizations.

6. Rethinking the scope of the war against terrorism: Congress and the executive branch need to commit to rethinking the scope of the war against terrorism. Therefore, the president needs to clearly explain and justify the nature of the conflict, the reasons for its continuation, and the means through which this will occur. Meanwhile, Congress must carry out its constitutional responsibilities. We must therefore prohibit large-scale conflicts for indeterminate periods of time with only scattered support from Congress. Congress cannot shy away from the potential consequences of democratic deliberations about war. These steps will not affect presidential powers with regard to counterterrorism.

7. Affirm the continuation of military operations abroad: In general, this intended reform does not mean the end of wars abroad for at least two reasons: first, the continuing expansion of US military and intelligence forces on an enormous scale around the world, and secondly, the president’s capacity to draw upon separate, broad-reaching powers through the second article of the constitution, among other sources of authority, in response to perceived terrorist threats. Of course, presidents face political risks when they draw upon Article 2 alone for counterterrorism purposes that goes beyond what Congress has approved. Therefore, the latter must give explicit authorization for the president to use military powers given all the necessary conditions for protecting US national security, and especially focusing on explicit authorization of force in cases of self-defense. Additionally, Congress needs to prohibit the president’s use of force outside the scope of these reasons, and especially to ban humanitarian intervention without approval from Congress.

Reasons for Misuse of Authorizations and Potential Solutions:

In his testimony, Bob Bauer discussed the causes of the misuse of authorizations of military force, which can be summarized as follows:

1. Longstanding conflict between Congress and the president: Donald Trump’s administration revealed glaring weaknesses in the legal rules and regulations that govern the use of the second article. Of course, this is not limited to the Trump administration, and extends back to other presidencies over the years. David Barron, a judge and constitutional scholar, said that the matter is nothing more than an “ongoing conflict over authority that hasn’t yet been settled.”

2. Efforts of presidents to extend congressional authorization: This is an opportune moment for both Democrats and Republicans in Congress to resolve this chaos in constitutional policy in coordination with the executive branch. The War Powers Resolution must be examined and should continue to take up Congress’s attention, especially given the increasing importance of reform directed at the US forces in Iraq. Congress needs to pay particular attention to the presidents’ efforts to extend congressional authorizations for the use of force using a single framework intended to respond to specific conditions. Likewise, Congress needs to respond to the executive branch’s allegations and to focus on constitutional accountability to prevent “endless wars.” Congress cannot deal with this separately from reforming the authorization for use of military force.

3. Importance of achieving consensus between the two parties to support reform: The 2001 opinion of the Office of Legal Counsel regarding the constitutional authority of the president to undertake military operations against terrorists and state sponsors of terrorism needs to be withdrawn. Additionally, related presidential powers in using military force for self-defense need to be reexamined. Congress can support reform efforts if there is consensus among the two parties, the executive branch, and Congress.

4. Adopting additional measures to hold presidents accountable: Congress needs to take into consideration the long-anticipated resolution to renew war powers, and to consider what measures it can best adopt to hold presidents accountable in their use of nuclear powers. However, there is a glimmer of hope if Congress can seize the opportunity to achieve what it can with regard to reforming war powers.

In conclusion, Congress has grown increasingly frustrated, especially after the US military airstrikes on Syria. Given Joe Biden’s statement that the White House is open to the idea of repealing the authorizations for presidential war powers, this is the opportune moment for reform, especially in light of escalating tensions with Iran, as well as the questions raised by Congress about the Biden administration’s legal justification for launching attacks on Syria.

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