War Powers and the ISIL Threat

September 24, 2014

In July of 1806, William Smith and Samuel Ogden were put on trial in New York City for their efforts to provide military aid to Francisco de Miranda, a Latin American revolutionary fighting for Venezuela’s independence from Spain. They were accused of violating a 1794 law called the Neutrality Act. Passed in order to help keep the United States from being dragged into a war between European powers, the law stipulated that any person who engaged in any military expedition or enterprise against a nation with whom the United States was in a state of peace was guilty of a crime. Because the United States was at peace with Spain—and Smith and Ogden’s actions arguably constituted a military enterprise against Spain—they faced prosecution for violating the Act.

At trial, Smith and Ogden based their defense on the claim that their work had been authorized by President Thomas Jefferson. This was an incendiary claim that, if true, meant the President of the United States had authorized a military operation against a country with whom the country was at peace. It would have turned the trial into an early nineteenth-century Iran-Contra. To prove their claim, they sought to coerce the testimony of Secretary of State James Madison.

The court ultimately refused to allow Smith and Ogden to subpoena the testimony of Secretary Madison on the grounds that the President’s alleged complicity had no bearing on the defendants’ guilt or innocence. As the presiding judge said, “The President of the United States cannot… authorize a person to do what the law forbids.” Congress had forbidden military action against a country with whom the United States was at peace and the President could not launch a military expedition the Congress had expressly barred him from undertaking.

This case provides a window into international law as it stood in the era of our founders. International law was in its infancy at this time and was still extremely formal. Unless they were at war, states were legally at peace. If a state wished to initiate a state of war with another state, it was expected to formally declare war, giving the other state proper notice that normal relations were terminated and a state of war had been initiated.

It is in this context that the U.S. Constitution gave Congress the power to declare war, meaning the power to alter the state of relations between the United States and another state. But this does not mean that the convention or its delegates believed that the President could only wage war if Congress declared war.

Thomas Jefferson, though not a delegate to the Constitutional Convention, supported dividing war powers between Congress and the President. When he became the President, the Barbary Pirates were capturing American ships, taking the sailors hostage and holding them for ransom. The Pasha of Tripoli demanded the United States pay tribute for safe passage of its ships. When Jefferson refused to pay, the Pasha declared war on the United States.

Jefferson was an advocate of a restrained executive branch, but did not wait for a Congressional declaration of war nor should he have. He acted to counter the threat the Pirates posed to American shipping. It was not controversial for the U.S. President to act to defend the country and its citizens. A state of war existed between the U.S. and Tripoli by virtue of the Pasha’s declaration of war. A Congressional declaration of war was not required because a Congressional declaration of war is not the only way that a state of war can begin.

A declaration of war is not just about launching military operations. It is about altering relations between nation states, fitting given that war is politics by other means. A state of war is declared to alter the relations between nations from a state of peace to a state of war. Recall that in the Smith and Ogden case, the Neutrality Act distinguished between a state with whom the United States was at peace (against whom Congress prohibited military action by statute) and states with whom the United States was at war (toward whom we were, naturally, not neutral). A state declares war on another state, triggering a whole host of changes in the formerly normal diplomatic relations between the two states. A state does not declare war on something that is not another state because there would be little to alter. A state of war can only exist between states.

This explains why President Woodrow Wilson and Congress acted as they did in the mid-1910s. When Wilson decided to enter World War I on the side of Britain and France, Congress declared war first. However, when Wilson felt compelled to act to stop the raids of Pancho Villa in the southwest, he did not go to Congress for a declaration of war, but sought only a resolution approving the use of force (which itself was arguably unnecessary). It would have made no sense for Wilson to ask for a declaration of war because states don’t declare war on individuals nor do they declare war on roving bandits. Pancho Villa had no ministers to expel or trade ships to turn away.

A larger illustration of this distinction is the Civil War. The Congress never declared war on the Confederacy. How could they? The U.S. government didn’t recognize the Confederate States of America as a legitimate government. They were Americans in rebellion. A state of war could not sensibly be declared on a state that the U.S. didn’t recognize as legitimate.

This brings us to the question of the Constitution’s war powers and ISIL. Though it has declared itself to be a caliphate and a state, neither the United States nor any other country recognizes it as such. The provision giving Congress the power to declare war is simply irrelevant to dealing with a threat that is not a state against which war can be declared.

Even if ISIL were a real state, the President should not be held back from using military force to defend the country until Congress has declared war in a case like this in which the enemy has already killed Americans and threatens to kill more. Its leader, Abu Bakr al-Baghdadi, has publicly announced his group’s intention to kill more Americans. In 2012, al-Baghdadi released an audio recording where he threatened to strike at “the heart of [the American] homeland,” adding, “Our war with you has just begun.” He was once captured and detained by the U.S. military for his participation in the Iraqi insurgency and was released from U.S. detention in 2009. When released, he told his American jailers, “I’ll see you in New York.” The threat must have seemed boastful then, but it doesn’t seem an empty threat any longer as terrorism experts are warning that ISIL will try to strike the U.S. homeland. Just last month, ISIL members openly told reporters from the Reuters news agency they intended to launch attacks inside the U.S.

The United States faces a clear and present danger from an organization that has declared its intention to kill Americans and demonstrated its ability to do so. The idea that it is illegal for the President to use military force to counter this threat unless he first asks Congress to treat the situation as if he is initiating an unprovoked invasion is utter nonsense.

Adding to the confusion over the proper role of Congress and the President in this question is the conflation of declarations of war with authorizations for the use of force. The United States hasn’t declared war since World War II. Instead, Congress has passed authorizations to use force. Some have now interpreted this to mean that since Congress is given the power to declare war, it is Congress that must vote to initiate any military action by passing an authorization to use force. This is a mistake that stems from an assumption that recent Congressional practice accurately reflects the original Constitutional design.

The Constitution gives Congress the power to declare war, which is the power to alter the state of relations between the United States and another state. This does not mean Congress has to approve any deployment of U.S. military force. In 1995, for example, President Clinton launched a 60,000 man NATO peacekeeping mission in Bosnia as part of the Dayton Peace Accords. Congress voted to fund the mission and expressed support for the troops, but the resolution Congress passed explicitly declined to support the mission and did not authorize the use of military forces. But Congress did not need to authorize the mission. The United States was not committing itself to a state of war with another sovereign state. There was no requirement that Clinton get Congress to approve anything other than funds to pay for the mission. Clinton publicly said that he was sending U.S. forces to Bosnia whether Congress voted for the mission or not, as long as he could secure funding. Congressional leaders like Senator Bob Dole conceded that the President could legally do so just as President Reagan had done in Lebanon and President Bush had done in Somalia.

Nor can it be said that these missions were different because they were peacekeeping missions because both Presidents Reagan and Bush also launched combat missions without Congressional authorization. The 1983 invasion of Grenada and the 1989 invasion of Panama were plainly combat missions from the outset. In neither case did the President seek Congressional authorization prior to intervening. There was no reason to do so. The mission to remove the communist coup that had taken over Grenada did not require that the United States declare a state of war with the government of Grenada. Quite the contrary, the United States was trying to restore the legitimate government of Grenada. In Panama, similarly, the United States was trying to allow the legitimately elected government of Panama to take office by ousting General Manuel Noriega. Noriega was not the de jure leader of the country but he was in de facto control. The United States was trying to end Noriega’s subversion of Panama’s constitutional government so it made no sense to declare war on the country whose government the United States was trying to restore.

In Syria and Iraq, the United States is not committing itself to a state of war with either Syria or Iraq. There is no reason Congress must first vote to declare a state of war if the President isn’t waging war against another nation state and it is a mistake to think that because Congress is given the power to declare war then the prerogative to initiate a military campaign rests solely with the Congress.

And even if it were true that Congress had to authorize the use of force against ISIL, it already has done so, despite popular contentions to the contrary.

In 2001, the Congress passed an authorization for the use of military force (AUMF) passed after the 9/11 terrorist attacks. The resolution approved the use of force against any organization that was involved in the attack on the United States, meaning al Qaeda. It has been argued that the 2001 AUMF does not apply to ISIL because ISIL has fallen out with al Qaeda and is no longer part of the organization. This is a deeply problematic argument. It essentially allows terrorist organizations to gain immunity from attack any time they reorganize themselves. The split between ISIL and al Qaeda wasn’t an attempt to exploit a legal technicality – there were substantive divisions between the leadership of the two organizations – but the fact remains that ISIL’s desire to strike the United States has been a constant before and after this split. It would be a mistake to say it is legal for the President to strike a terrorist who is planning to hit the U.S. one day but not the next day on the grounds that the leadership of his faction fell out with the leaders of another faction.

Allowing ISIL to fall outside the AUMF because it has subsequently broken with al Qaeda would place form over substance to the detriment of national security. Under this theory, any component part of al Qaeda (including all of its regional affiliates in places like the Arabian Peninsula and the Islamic Maghreb) could take itself outside the scope of the AUMF by declaring itself independent of al Qaeda’s core leadership in Pakistan and it could do so without ceasing any of its efforts to attack the United States. ISIL may have left al Qaeda, but it still threatens the United States and cannot claim safe haven by virtue of having split from its parent organization if it still poses a threat to the U.S.

Even if one rejects this logic, Congress passed another authorization for the use of force that even more clearly gives the President the power to use military force against ISIL. In 2002, Congress voted to authorize the invasion of Iraq. That resolution does not limit itself to force against the regime of Saddam Hussein. It authorizes force to be used to stop “the continuing threat by Iraq”. It could be argued that this resolution refers only to the state of Iraq and not any terrorist group operating in Iraq but after the fall of the regime, no one seriously questioned that the authorization allowed the United States to fight the Sunni Insurgency. ISIL and its leadership (including al-Baghdadi) were a part of the Sunni insurgency. There is no reason to think the original authorization for the use of force would not allow the U.S. to continue to fight the very same insurgents it was fighting until its withdrawal in 2011.

To demonstrate this point, consider the following thought experiment: Imagine the United States had not withdrawn from Iraq in 2011 and had a residual force in place this year when ISIL began its push against Mosul. Would anyone question that the President could use the military forces in Iraq to defend Iraq against ISIL? Of course not. It would be obvious we were fighting essentially the same enemy under the same authorization as we had been fighting since 2003. Whether the President has the authority to strike ISIL does not depend on where U.S. military forces are located and authorizations for the use of force don’t expire on their own while the fight is still ongoing. Congress could repeal or alter the AUMF, but they haven’t done so. The AUMF’s scope would only change if Congress changed it (which they haven’t). Because the AUMF is still in place and it was never questioned that it allowed the U.S. to fight the insurgency it should be read to authorize the President to fight an enemy that was a key part of the insurgency as they attempt to resurrect themselves today.

Nor does the fact that some fighting will take place in Syria change the legal analysis. The United States did not need to declare war on Yemen or Somalia to strike al Qaeda in those countries. Once it is established that the President can use force against ISIL, he can use force wherever ISIL may be. What matters is that the President can attack America’s enemies, not the exact location of those enemies.

The view that Congress must always authorize the use of military force before troops are committed to battle is incorrect. The mistaken belief that it is illegal for the President to launch strikes against ISIL without Congressional approval stems from a basic misreading of Article I, Section 8. Only by reading the provision in its proper context can we see clearly that the Constitution is not a straight jacket designed to stymie the President’s performance of his duty as commander in chief with endless legal technicalities. The Article is a check on the President’s power but it is not a negation of his duty as commander in chief. There should be no doubt that the President has all the authority he needs to take on ISIL.


John Ford is a Captain in the United States Army and an attorney. The views expressed here are his alone and not the views of any government agency. He is also a graduate of Loyola Marymount University and the Fowler School of Law at Chapman University. You can follow him on twitter @johndouglasford.