Yes the US Military Presence in Syria is Constitutional

Much has been made about the US Military Presence in Syria in the past two days in response to President Trump’s decision to withdraw Troops from the country. While I won’t get into why the President’s decision is a terrible one which will cost thousands of lives, I will explain the legal basis for Operation Inherent Resolve and respond to claims by Congressman and Political Pundits that oppose the US mission in Syria on Legal Grounds, in being that the War was never authorized by Congress.

The President already possesses the legal authority needed to conduct the anti-ISIS counter-terrorism campaign, which is not the same as a nation-v-nation war, such as Operation Iraqi Freedom. The President’s counter-terrorism authority is rooted in Article II of the Constitution, not statutory authority, which has been affirmed by Congress since the Clinton administration. A proposed AUMF is for policy and political reasons, not for legal authority, although it may be legally useful for an anti-ISIS action on territory where the local nation opposes the action.

Shortly after the September 11th attacks, Congress passed the Authorization for Use of Military Force (2001 AUMF). In that joint resolution, Congress authorized 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, 2001, or harbored such organizations or persons.”

Through the 2001 AUMF, Congress intended to give the President the statutory authority he needed “in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” The 2001 AUMF plainly covers al-Qa’ida, the “organization” that “planned, authorized, committed, and aided the terrorist attacks that occurred on September 11, 2001,” as well as the Taliban, which “harbored” al-Qa’ida. Thus, in accordance with this statutory authorization, the United States commenced military operations against al-Qa’ida and the Taliban on October 7, 2001. The 2001 AUMF continues to provide the domestic legal authority for the United States to use military force against the terrorist threats identified above.

All three branches of the U.S. Government have affirmed the ongoing authority conferred by the 2001 AUMF and its application to al-Qa’ida, to the Taliban, and to forces associated with those two organizations within and outside Afghanistan. All three branches of government have recognized that the 2001 AUMF authorizes the use of force against “al-Qa’ida, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”

What makes one an Associated Force? To be considered an “associated force” of al-Qa’ida or the Taliban for purposes of the authority conferred by the 2001 AUMF, an entity must satisfy two conditions. First, the entity must be an organized, armed group that has entered the fight alongside al-Qa’ida or the Taliban. Second, the group must be a co-belligerent with al-Qa’ida or the Taliban in hostilities against the United States or its coalition partners. Thus, a group is not an associated force simply because it aligns with al-Qa’ida or the Taliban or embraces their ideology. Merely engaging in acts of terror or merely sympathizing with al-Qa’ida or the Taliban is not enough to bring a group within the scope of the 2001 AUMF. Rather, a group must also have entered al-Qa’ida or the Taliban’s fight against the United States or its coalition partners.

Consistent with the above, the 2001 AUMF does not authorize the President to use force against every group that commits terrorist acts. Rather, the U.S. military is currently taking direct action against solely the following individuals and groups under the authority of the 2001 AUMF: al-Qa’ida, the Taliban, certain other terrorist or insurgent groups affiliated with alQa’ida or the Taliban in Afghanistan, AQAP, al-Shabaab, individuals who are part of al-Qa’ida in Libya, al-Qa’ida in Syria, and ISIL.

A determination was made at the most senior levels of the U.S. Government that each of the groups named above is covered by the 2001 AUMF only after a careful and lengthy evaluation of the intelligence concerning each group’s organization, links with al-Qa’ida or the Taliban, and participation in al-Qa’ida or the Taliban’s ongoing hostilities against the United States or its coalition partners. Moreover, the Executive Branch also regularly briefs Congress about U.S. operations against these groups and the legal basis for these operations.

Although much of the intelligence underlying a determination that a group is covered by the 2001 AUMF is necessarily sensitive, many of these groups have made plain their continued allegiance and operational ties to al-Qa’ida. For example, this determination was made recently with respect to al-Shabaab because, among other things, al-Shabaab has pledged loyalty to alQa’ida in its public statements; made clear that it considers the United States one of its enemies; and been responsible for numerous attacks, threats, and plots against U.S. persons and interests in East Africa. In short, al-Shabaab has entered the fight alongside al-Qa’ida and is a cobelligerent with al-Qa’ida in hostilities against the United States, making it an “associated force” and therefore within the scope of the 2001 AUMF.

A particularly prominent group that both the Obama Administration determined to fall within the ambit of the 2001 AUMF is the enemy force now called ISIL. As discussed below, Congress has expressed support for this action.

First, a word about this group we call ISIL, referred to variously as ISIS, the Islamic State or Daesh (its acronym in Arabic). In 2003, a terrorist group founded by Abu Mu’sab al-Zarqawi — whose ties to bin Laden dated from al-Zarqawi’s time in Afghanistan and Pakistan before 9/11 — conducted a series of sensational terrorist attacks in Iraq. These attacks prompted bin Laden to ask al-Zarqawi to merge his group with al-Qa’ida. In 2004, al-Zarqawi publicly pledged his group’s allegiance to bin Laden, and bin Laden publicly endorsed al-Zarqawi as al-Qa’ida’s leader in Iraq. For years afterwards, al-Zarqawi’s group, often referred to as al-Qa’ida in Iraq, or AQI for short, conducted numerous deadly terrorist attacks against U.S. and coalition forces, as well as Iraqi civilians, using suicide bombers, car bombs and executions. In response to these attacks, U.S. forces engaged in combat — at times, near daily combat — with the group from 2004 until U.S. and coalition forces left Iraq in 2011. Even since the departure of U.S. forces from Iraq, the group has continued to plot attacks against U.S. persons and interests in Iraq and the region — including the brutal murder of kidnapped American citizens in Syria and threats to U.S. military personnel in Iraq.

As the Obma Administration has explained publicly, the 2001 AUMF has authorized the use of force against the group now called ISIL since at least 2004. The facts underlying this determination are as follows: a terrorist group founded by Abu Mu’sab al-Zarqawi — whose ties to Osama bin Laden dated from al-Zarqawi’s time in Afghanistan and Pakistan before the September 11th attacks — conducted a series of terrorist attacks in Iraq beginning in 2003.

These attacks prompted bin Laden to ask al-Zarqawi to merge his group with al-Qa’ida. In 2004, alZarqawi publicly pledged his group’s allegiance to bin Laden, and bin Laden publicly endorsed al-Zarqawi as al-Qa’ida’s leader in Iraq. For years afterwards, al-Zarqawi’s group, which adopted the name al-Qa’ida in Iraq (AQI) when it merged with al-Qa’ida, conducted deadly terrorist attacks against U.S. and coalition forces. In response to these attacks, U.S. forces engaged in combat operations against the group from 2004 until U.S. and coalition forces left Iraq in 2011. The group has continued to plot attacks against U.S. persons and interests in Iraq and the region — including the brutal murder of kidnapped American citizens in Syria and threats to U.S. military personnel that are now present in Iraq at the invitation of the Iraqi Government.

The subsequent 2014 split between ISIL and current al-Qa’ida leadership does not remove ISIL from coverage under the 2001 AUMF. Although ISIL broke its affiliation with alQa’ida, the same organization continues to wage hostilities against the United States as it has since 2004, when it joined bin Laden’s al-Qa’ida organization in its conflict against the United States. As AQI, ISIL had a direct relationship with bin Laden himself and waged that conflict in allegiance to him while he was alive. ISIL now claims that it — not al-Qa’ida’s current leadership — is the true executor of bin Laden’s legacy. There are rifts between ISIL and parts of the network bin Laden assembled, but some members and factions of al-Qa’ida-aligned groups have publicly declared allegiance to ISIL.

At the same time, ISIL continues to denounce the United States as its enemy and to target U.S. citizens and interests. In these circumstances, the President is not divested of the previously available authority under the 2001 AUMF to continue using force against ISIL — a group that has been subject to that AUMF for more than a decade — simply because of conflicts between the group and al-Qa’ida’s current leadership. A contrary interpretation of the statute would allow an enemy force — rather than the President and Congress — to control the scope of the 2001 AUMF by splintering into rival factions while continuing to prosecute the same conflict against the United States.

Some initially greeted with skepticism the President’s reliance on the 2001 AUMF for authority to renew military operations against ISIL . To be sure, we would be having a different conversation if ISIL had emerged out of nowhere a few years ago, having no history with bin Laden and no more connection to current al-Qa’ida leadership than it has today, or if the group once known as AQI had, for example, renounced terrorist violence against the United States at some point along the way. But ISIL did not spring fully formed from the head of Zeus a few years ago, and the group certainly has never laid down its arms in its conflict against the United States.

The name may have changed, but the group we call ISIL today has been an enemy of the United States within the scope of the 2001 AUMF continuously since at least 2004. A power struggle may have broken out within bin Laden’s jihadist movement, but this same enemy of the United States continues to plot and carry out violent attacks against us to this day. Viewed in this light, reliance on the AUMF for counter-ISIL operations is hardly an expansion of authority. After all, how many new terrorist groups have, by virtue of this reading of the statute, been determined to be among the groups against which military force may be used? The answer is zero.

The President’s authority to fight ISIL is further reinforced by the 2002 authorization for the use of military force against Iraq (referred to as the 2002 AUMF). That AUMF authorized the use of force to, among other things, “defend the national security of the United States against the continuing threat posed by Iraq.” Although the threat posed by Saddam Hussein’s regime in Iraq was the primary focus of the 2002 AUMF, the statute, in accordance with its express goals, has always been understood to authorize the use of force for the related purposes of helping to establish a stable, democratic Iraq and addressing terrorist threats emanating from Iraq. After Saddam Hussein’s regime fell in 2003, the United States, with its coalition partners, continued to take military action in Iraq under the 2002 AUMF to further these purposes, including action against AQI, which then, as now, posed a terrorist threat to the United States and its partners and undermined stability and democracy in Iraq. Accordingly, the 2002 AUMF authorizes military operations against ISIL in Iraq and, to the extent necessary to achieve these purposes, in Syria.

As is also true with respect to the broader conflict against al-Qa’ida, the Taliban, and associated forces, Congress has repeatedly and specifically funded the President’s military actions against ISIL through an unbroken stream of appropriations over multiple years. Shortly after announcing the military operation against ISIL in 2014, the President asked for and obtained from Congress $5.6 billion for the express purpose of carrying out specific military activities against ISIL in Iraq and Syria.

Congress has since appropriated an additional $5 billion in support of the U.S. counter-ISIL effort, virtually all of it in line with the specific amounts and categories requested by the President. These funds were made available over the course of two annual budget cycles, in connection with close congressional oversight of the status and scope of U.S. counter-ISIL activities, and with knowledge of the specific measures the President was taking to counter ISIL and the statutory provisions under which he was acting

Congressional support for the military campaign against ISIL extends beyond the appropriation of funds for specific military activities. Congress has also authorized the President to provide lethal and nonlethal assistance to select groups and forces fighting ISIL in Iraq and Syria. In doing so, Congress has defined the parameters of the assistance programs and provided specific direction for the use of its appropriations.

Throughout this period, Congress has also reinforced its oversight role through reporting requirements relating to the costs and status of U.S. counter-ISIL operations, including monthly reports documenting incremental costs of the operation; quarterly reports on the status of U.S. forces deployed in support of the operation; regular reporting from the inspector general for the military operation against ISIL; and reporting consistent with the requirements in the War Powers Resolution.This reporting is in addition to information Congress receives from the Executive Branch during regular oversight hearings.

These funding, oversight, and authorizing measures convey Congress’s support for the President’s use of force against ISIL, including his determination that he had and continues to have authority to act under prior congressional authorizations for the use of military force.

In summary, the Executive Branch’s decision that a group is covered by the 2001 AUMF is not taken lightly. That determination is made at the most senior levels of the U.S. Government, and it follows careful consideration and fact-intensive reviews by senior government lawyers and is informed by departments and agencies with relevant expertise and institutional roles, including all-source intelligence from the U.S. Intelligence Community. Finally, the fact that an al-Qa’ida or Taliban-affiliated group has not been identified as covered by the 2001 AUMF does not mean that the United States has made a final determination that it lacks the statutory authority to use force against the group. The United States remains prepared to review this question whenever a situation arises in which it may be necessary to take direct action against a terrorist group.

So how does this relate to Syria? U.S. Armed Forces are conducting a systematic campaign of airstrikes and other necessary operations against ISIL forces in Iraq and Syria. U.S. Armed Forces are also conducting airstrikes and other necessary operations against al-Qa’ida in Syria. As part of the campaign against ISIL outlined above, the United States is using force against ISIL in Syria. The United States is conducting a systematic campaign of airstrikes against ISIL and has provided U.S. military equipment, ammunition, and other assistance to indigenous ground forces conducting operations against ISIL in Syria. Small teams of U.S. special operations forces have also deployed to Syria to help coordinate U.S. operations with some of these indigenous ground forces. Furthermore, the United States is conducting airstrikes against al-Qa’ida in Syria, including against those leaders of al-Qa’ida in Syria who are involved in plotting against the United States and its partners.

The 2001 AUMF and, in certain circumstances, the 2002 AUMF authorize the use of force in Syria against al-Qa’ida in Syria and ISIL; as previously noted, Congress has also supported this military campaign through an unbroken stream of appropriations.

Does the AUMF give the President too much authority? Should Congress Declare War? Why an AUMF?

In contrast to an authorization, a declaration of war in itself creates a state of war under international law and legitimates the killing of enemy combatants, the seizure of enemy property, and the apprehension of enemy aliens. While a formal declaration was once deemed a necessary legal prerequisite to war and was thought to terminate diplomatic and commercial relations and most treaties between the combatants, declarations have fallen into disuse since World War II. The laws of war, such as the Hague and Geneva Conventions, apply to circumstances of armed conflict whether or not a formal declaration or authorization was issued.

With respect to domestic law, a declaration of war automatically triggers many standby statutory authorities conferring special powers on the President with respect to the military, foreign trade, transportation, communications, manufacturing, alien enemies, etc. In contrast, no standby authorities appear to be triggered automatically by an authorization for the use of force, although the executive branch has argued, with varying success, that the authorization to use force in response to the terrorist attacks of 2001 provided a statutory exception to certain statutory prohibitions.

Most statutory standby authorities do not expressly require a declaration of war to be actualized but can be triggered by a declaration of national emergency or simply by the existence of a state of war; however, courts have sometimes construed the word “war” in a statute as implying a formal declaration, leading Congress to enact clarifying amendments in two cases. Declarations of war and authorizations for the use of force waive the time limitations otherwise applicable to the use of force imposed by the War Powers Resolution.

However, the most critical aspect of the “declaration of war” is that it is performed by Congress in order to “check and balance” the powers of the Executive. While the President does have certain powers under the War Powers Resolution, they are limited in nature, scope and time. Only Congress can waive these limitations (in part via an AUMF or in full via a declaration of War) as well as approve the funding for military actions.

Early American jurisprudence drew a distinction between general, or perfect, war and limited, or imperfect, war, and understood a declaration of war under Article I, § 8, of the Constitution to commit the nation to a general war. Justice Washington, in Bas v. Tinghy, described the distinction as follows:

“It may, I believe, be safely laid down, that every contention by force between two nations, in external matters, under the authority of their respective governments, is not only war, but public war. If it be declared in form, it is called solemn, and is of the perfect kind; because one whole nation is at war with another whole nation; and all the members of the nation declaring war are authorised to commit hostilities against all the members of the other, in every place, and under every circumstance. In such a war all the members act under a general authority, and all the rights and consequences of war attach to their condition. …Hostilities may subsist between two nations more confined in its nature and extent; being limited as to places, persons, and things; and this is more properly termed imperfect war; because not solemn, and because those who are authorised to commit hostilities, act under special authority, and can go no farther than to the extent of their commission. Still, however, it is public war, because it is an external contention, by force, between some of the members of the two nations, authorised by the legitimate powers.”

Justice Chase, more simply, stated: “Congress is empowered to declare a general war, or congress may wage a limited war; limited in place, in objects, and in time.” Thus, at least in the 18th and 19th centuries, authorizations for the use of force were understood to be included within Congress’s power to declare war and to have narrower legal consequences than declarations of war.

Therefore, not only is Congress executing their Constitutional requirements by balancing and checking the President’s power through the use of an AUMF vs. a declaration of war but Congress is actually doing more to limit the President’s power by doing it in this fashion. Which arguably makes it the more preferable option.

Under ordinary circumstances the President exercises the powers conferred on him by the Constitution and by statutes enacted by Congress. As noted above, in extraordinary circumstances a number of additional statutory powers may become available; and his Constitutional powers are likely to be given a generous interpretation by the courts. The standby statutory authorities potentially available to the President and the executive branch number in the hundreds. Some are triggered by a declaration of war, some by the existence of a state of war (and, thus, also by a declaration of war), and some pursuant to a declaration or the existence of national emergency.

Most can be triggered by one or more of the foregoing circumstances. None of these special authorities appears to be triggered by an authorization for the use of force (unless and until it leads to a state of war). With respect to those statutes that are triggered by the existence of a national emergency or of a state or time of war, the determination of whether such a condition exists would be made in the first instance by the executive branch, unless the statute provides otherwise….the standby authorities that become available to the President and the executive branch upon (1) a declaration of war, (2) the existence of a state of war, and (3) pursuant to a declaration of national emergency.

It is important to emphasize that a declaration of war activates not only the statutes listed in the first subsection but also — because a declaration of war automatically creates a state of war — those listed in the second section. The latter statutes are listed separately because they can come into effect even if a declaration of war is never adopted.

The lists is below but you should review the above link to understand what these authorities mean:

(1) Statutory Authorities Triggered by a Declaration of War

  • Congressional Budget Act
  • Agricultural Exports
  • Armed Forces
  • Coast Guard
  • Small Business Administration
  • Unilateral Trade Sanctions
  • Armed Forces Retirement Home
  • Statutes of Limitation
  • Tort Claims Against the Federal Government
  • Deferral of Civil
  • Works Projects
  • Nuclear Regulatory Commission
  • Alien Enemy Act
  • National Defense Stockpile
  • National Security Agency (NSA) Personnel Security
  • Chemical and Biological Warfare Agents
  • National Emergencies Act
  • Foreign Intelligence Surveillance Act (FISA)
  • Selective Service Act

(2) Statutory Authorities Triggered by the Existence of a State of War (and Thus Also by a Declaration of War)

  • Administrative Procedure
  • Federal Employees
  • Aliens
  • Armed Forces
  • Reserves
  • Trading with the Enemy Act
  • Coast Guard
  • Federal Energy Regulatory Commission
  • Tennessee Valley Authority
  • Criminal Prosecutions
  • Imports
  • Student Financial Aid
  • Neutrality
  • Miscellaneous
  • Accounting and Contracts
  • Contracts
  • National Guard
  • Armed Forces
  • National Oceanic and Atmospheric Administration
  • Ocean Dumping
  • Patents
  • Armed Forces
  • Veterans’ Care
  • Reemployment Rights
  • Sale of War Supplies to Foreign States
  • Defense Structures in the District of Columbia
  • Public Contracts
  • Public Health Service
  • Infectious Diseases
  • Nuclear Energy
  • Public Lands
  • Natural Resources
  • Destruction of Records
  • Shipping
  • Communications
  • Railroads
  • Procurement of Ships and Material During War
  • Protection of Ships and Harbors
  • Federal Emergency Management Agency
  • Central Intelligence Agency (CIA) Retirement Plan
  • International Emergency Economic Powers
  • Trading with the Enemy Act
  • Selective Service Act

(3) Statutory Authorities Triggered by Declaration or Existence of National Emergency

  • Federal Employees
  • Agriculture
  • Armed Services
  • Fort McHenry
  • Customs Service
  • Barro Colorado Island
  • Foreign Relations
  • Federal Highways
  • National Oceanographic and Atmospheric Administration
  • Basic Pay of the Uniformed Services
  • Veterans Affairs
  • Davis-Bacon Act
  • Real Property and Contracts
  • Public Health
  • Ryan White Comprehensive AIDS Resources Emergency Act of 1990
  • Prohibition of Compensation
  • Relocation
  • Resources
  • Merchant Marine
  • Airports
  • Modification of Defense Contracts
  • National Emergencies Act
  • International Economic Emergency Powers Act
  • Defense Production Act

Bottom line: When a war or national emergency is declared, the President gets powers that our wide ranging and touching all parts of American society. An AUMF (which has been the preferred method for Congress to meet their Constitutional responsibilities to “declare war”) can be used to significantly limit the President’s powers and not trigger these automatic authorities. (This is also why you will sometimes here discussions about “combat operations” that are not part of a “war.”)

Statutory delegations from Congress — exist on a stand-by basis and remain dormant until the President formally declares a national emergency. These delegations, or grants of power, authorize the President to meet the problems of governing effectively in times of crisis. Under the powers delegated by such statutes, the President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.Furthermore, Congress may modify, rescind, or render dormant such delegated emergency authority.

And of course, trying to use this to defend or bash one President in particular is folly given that it has a long and glorious historical tradition. In other words, both “declarations of war” and “authorizations” have been a part of American constitutional tradition since the earliest days. If every “undeclared” conflict is a violation of the Constitution, we need retroactive impeachment of Adams, Jefferson, Monroe, Eisenhower, Johnson, Reagan, and both Bushes.

A “declaration of war” has always been a specific policy tool — a blunt one, and one that many presidents, and Congresses, have chosen not to use. “Authorizations,” by contrast, permit the two branches to agree on limited war aims. An authorization can lapse without a formal surrender; it can permit military action short of total war. It’s a tool that any government needs, and any rational constitution provides.And lastly, while “declarations of war” used to have international implications that influenced trade regulation, diplomatic missions, and the like, the world has changed. And in the case of “declaring war” not necessarily for the better (with regards to those who insist upon a “declaration of war”):

In addition, international law (which is very much part of the Constitution) has changed during the last 115 years. The notion of a “declaration of war” is now both obsolete and meaningless. Under both the Kellogg-Briand Pact of 1928 and the United Nations Charter (1945), war is no longer a lawful tool of national policy. With few exceptions, states may use military force only in self-defense, or with the permission of the U.N. Security Council. Insisting that Congress “declare war” is not just simple-minded, but self-defeating: It is asking the nation to solemnly declare itself to be an international outlaw.

So bottom line: Congress is fulfilling its Constitutional duty to “declare war” even when it is just using an AUMF and we don’t want Congress to formally “declare war” in the World War II sense as: a) it puts us at odds with international law and b) it gives the Executive branch much more sweeping and unchecked powers. An AUMF is, in fact, a far superior option to a “declaration of war.”

Conclusion:

When using military force overseas, the United States complies with domestic law — including relevant constitutional and statutory authorities — and international law. In doing so, the Administration regularly informs Congress and the public of the status and circumstances of its use of military force overseas.

Sources:

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I Defend America and its Foreign Policy from a Liberal Perspective.

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James Slate

James Slate

I Defend America and its Foreign Policy from a Liberal Perspective.

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