Law and Disorder 09/16/2014

To war or not to war

by A.J. Wagner

Does the Congress or does the president get to declare war?

After announcing the four steps he is taking, the president said, “My administration has also secured bipartisan support for this approach here at home. I have the authority to address the threat from ISIL. But I believe we are strongest as a nation when the president and 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.”

World War II was the last time Congress declared war. Neither the Korean War nor the Vietnam War was waged with the full consent of Congress. President Clinton bombed Kosovo without consent and we’ve seen two Iraq conflicts go the same way.

So, does the president need Congress?

Article Two, Section 2 of the Constitution states, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States …”

So, who needs Congress?

Well, Congress has language to indicate their control over the machinery of war, too. Article One, Section 8 of the United States Constitution states in part:

“The Congress shall have power … To provide for the common defence (sic) and general Welfare of the United States …

“To declare War …

“To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

“To provide and maintain a Navy;

“To make Rules for the Government and Regulation of the land and naval Forces. . .

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

From time to time, Congress has asserted that only it has the power to mobilize the military, so it grants the president authority through specific legislation such as the 2001 Authorization to Use Military Force (AUMF). AUMF is a post 9-11 law authorizing the president to go after Al-Qaida. This law states, “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 Sept. 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.” (i.e. Let’s go get Al-Qaida.)

Presidents don’t usually believe they need such authorization, but since Congress offered, they take it.

In the case of attacking ISIL, a senior advisor to President Obama emailed writer Ankit Panda of The Diplomat, “Based on ISIL’s longstanding relationship with al-Qa’ida (AQ) and Osama bin Laden; its long history of conducting, and continued desire to conduct, attacks against U.S. persons and interests, the extensive history of U.S. combat operations against ISIL dating back to the time the group first affiliated with AQ in 2004; and ISIL’s position – supported by some individual members and factions of AQ-aligned groups – that it is the true inheritor of Osama bin Laden’s legacy, the president may rely on the 2001 AUMF as statutory authority for the use of force against ISIL, notwithstanding the recent public split between AQ’s senior leadership and ISIL.”

Linking ISIL to Al-Qaida is dubious, according to Panda, because Al-Qaida has denounced ISIL and disavowed any affiliation.

“ISIS, as it happens, is no friend of Al Qaeda’s,” Panda wrote. “Yes, the group was an off-shoot from Al Qaeda, but today, in September 2014, it is a strategic foe for Al Qaeda. The two groups have a deep philosophical disagreement about the priorities of global jihad. To oversimplify, Al Qaeda sees its first target as Western governments and others who prop up secular Arab dictators, Israel, and other non-Sunni leaders in the Muslim world. ISIS, meanwhile, has focused its efforts on establishing a caliphate first and using its strength to directly fight the governments it deems unfit for rule.”

So, is the president on sound legal footing? Is that why he asked for support from Congress?

Actually, it’s more public relations than anything. The president is going forward with or without Congress.

As for Congress, Rep. Jack Kingston recently explained: “Republicans don’t want to change anything. We like the path we’re on now. We can denounce it if it goes bad, and praise it if it goes well and ask what took him so long.”

Who needs the law when there’s good PR to be had? Bad PR only comes if you ask the more important question: Why are we going to war against an enemy that cannot directly harm us?

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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