https://www.pogo.org/analysis/2019/02/could-the-new-yemen-resolutions-further-erode-congressional-war-powers/?utm_source=weekly-reader&utm_medium=email&utm_campaign=wr-190216&utm_content=read-more-link Constitutional Principles
Could the New Yemen Resolutions Further Erode
Congressional War Powers?
BY LOU
FISHER & MANDY SMITHBERGER | FILED UNDER ANALYSIS | FEBRUARY 13, 2019
U.S. Navy Fire
Controlman 3rd Class Hunter Scholl mans a .50-caliber machine gun aboard the
guided-missile destroyer USS Jason Dunham (DDG 109) in the Bab Al-Mandeb
Strait, between Djibouti and Yemen, Oct. 7, 2018. (Photo: U.S. Navy /
Mass Communication Specialist 3rd Class Jonathan Clay)
Congressional critics of our
endless wars have been repeatedly stymied by leadership on both sides of the
aisle from engaging in a real debate and vote. That could be changing, however.
Recent resolutions to end US military support for the Saudi-led coalition in
the Yemen War appear to be a Congressional reassertion of that authority.
Still, it’s one step forward, two steps back: some of the language offered in
those resolutions, as written, could legitimize and strengthen the executive
branch’s broad assertions of its powers to wage war without congressional
approval.
Last year, the
Senate invoked the War Powers Resolution—the first time it
had done so since Congress had passed the War Powers Resolution in 1973—to
formalize its disapproval of the executive branch’s use of the US military in
the Yemen War. The White House threatened to veto the resolution, and the House
was unable to consider the resolution after Republican House leadership attached a provision to a procedural vote on
the 2018 farm bill to prohibit considering any war powers resolutions for the
rest of the year.
The House and the Senate introduced new resolutions last
month that pick up where last year’s fight left off. They both offer stronger
language than what the Senate passed last year, but should still be refined
further to prevent continued efforts by the executive branch to conduct illegal
wars in Americans’ names.
Part of the
important context to understand is that when Congress gives the executive
branch an inch on these powers, the executive branch takes miles and miles. In
2001 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.” Since then, each president has
read that authorization as broadly as necessary to allow the use of force.
The Congressional Research Service found the
executive branch has used that authority to deploy our troops to Djibouti,
Eritrea, Ethiopia, Georgia, Kenya, and Somalia—none of which had anything to do
with the attacks on our country in 2001. Representatives from both sides of the
aisle became concerned enough about these abuses that the House Appropriations
Committee supported a measure offered in 2017 by
Representative Barbara Lee (D-CA) to repeal the 2001 authorization. House
leadership prevented a vote on that through a procedure that stripped the repeal
language before the bill was considered on the Floor.
Unconstitutional
Presidential Wars
The current
war powers debate often misses how Congress has repeatedly allowed the
executive branch to improperly infringe upon its authority. Congress allowed
President Truman to set a troubling precedent that subsequent presidents have
used to continue to improperly expand their war powers.
The expansion of
our wars has also been furthered by executive branch interpretations of
“associated forces”—a phrase that was not part of the 2001 authorization. The
executive branch has argued that by continuing to provide money “through an
unbroken stream of appropriations over multiple years,” Congress has tacitly given
its approval for those operations. Congressional Research Service
analysts wrote that Congressional challenges to
hostilities absent authorization were unsuccessful “in large part because Congress
continued to appropriate money for military operations.”
If Congress wants
to stop the executive branch’s broad reading, they need to push back more
forcefully. The Yemen resolution passed by the Senate included a number of
loopholes that would allow support to continue. The resolution prohibits the
use of American troops or resources in “hostilities,” but it does not
explicitly prohibit the indirect assistance the U.S. has provided, such as
supplying bombs, aerial targeting assistance, or intelligence sharing. Problems
with this ambiguity were raised by Senator Bob Corker (R-TN), then the chair
of the Senate Foreign Relations committee. The White House made clear that without additional detail
about how hostilities was being defined, it would not interpret the United
States’ role as “hostilities.”
The new
resolutions clarify that in-flight refueling of non-US aircraft conducting
missions is prohibited, but do not prohibit the United States providing bombs
or sharing intelligence. If Congress truly wants to stop U.S. involvement in
Yemen, it needs to clarify that providing any assistance
is prohibited.
Given the
Administration’s past interpretation of Congressional intent, future
votes limiting actions in Yemen—and not voting on proposals to revise or repeal
the underlying war authorization language—leave the door wide open to
further claims of Congressional acquiescence to the Administration’s broad
readings everywhere, including keeping troops in Iraq to check Iran.
Congress’s war powers under the Constitution
are clear: it is Congress, not the executive branch, that has the power to
declare war.
Nixon vetoed the War Powers Resolution, but
Congress overrode the veto. Subsequent Presidents have sought to shield
the power of the executive branch by resisting Congress’s attempts to assert
itself in this arena. President Trump is likely to veto any legislative effort
to restrict his actions in this arena as well, so it is understandable that the
resolutions include some ambiguities to garner a veto-proof majority of votes
necessary for a significant reassertion of congressional authority.
Unfortunately, those ambiguities may undermine further efforts of this Congress
and future ones to challenge endless war.
Congress’s war
powers under the Constitution are clear: it is Congress, not the executive
branch, that has the power to declare war. While the War Powers
Resolution passed in 1973 was seen as Congress attempting to reassert those
powers, Congress has otherwise allowed its authority in national security to
continue to diminish. “The net result was to legalize a scope for independent
presidential power that would have astonished the Framers, who vested the power
to initiate hostilities exclusively in Congress,” Lou Fisher (co-author of this
piece) and former Idaho State University professor David Gray Adler wrote
in a 1998 article. As a consequence, the War Powers Resolution
“grants to the president unbridled discretion to go to war as he deems
necessary against anyone, anytime, anywhere, for at least ninety days. As
Arthur Schlesinger Jr. has observed, before ‘the passage of the resolution,
unilateral presidential war was a matter of usurpation. Now, at least for the
first ninety days, it was a matter of law.’” Fisher and Adler wrote.
Some of the
challenges of ending wars came up in the Constitutional Convention, the
Congressional Research Service observed in a
2008 report:
Although
the U.S. Constitution expressly empowers Congress to declare war, it is notably
silent regarding which political body is responsible for returning the United
States to a state of peace. Some evidence suggests that this omission was not
accidental. During the Constitutional Convention, a motion was made by one of
the delegates to modify the draft document by adding the words ‘and peace’
after the words ‘to declare war.’ This motion, however, was unanimously
rejected. Convention records do not clearly evidence the framers’ intent in
rejecting the motion. (internal citations omitted)
So what options
are available to Congress that are realistic in this scenario? One is to
legislate what they mean when it comes to the Yemen War: Congress never
authorized direct or indirect support of the Saudi government’s bombings, and
will not allow the United States to provide direct or indirect support. In the
House, the chair of the Foreign Affairs Committee, Representative Eliot Engel
(D-NY), is a cosponsor of the House Yemen resolution and has expressed interest
in reevaluating the executive branch’s interpretation of previous war
authorizations. Alternatively, Congress could use the
appropriations process to prohibit funding for direct or indirect support.
These
options require more political courage than we’ve seen Congress demonstrate in
regard to military policy for decades, but the direct approach is not only
advisable but essential for restoring Congress’s war powers and
protecting our constitutional system.
The Center for Defense Information at POGO aims to secure
far more effective and ethical military forces at significantly lower cost.
POGO will continue to
devote itself to rooting out waste, fraud, and abuse of power at even the
highest levels of government. Give now to support our investigations.
Louis Fisher
is Scholar in Residence at The Constitution Project at POGO.
Mandy Smithberger is the Director of the Straus Military
Reform Project at the Center for Defense Information at the Project On
Government Oversight.
Donations can be sent
to the Baltimore Nonviolence Center, 325 E. 25th St., Baltimore, MD
21218. Ph: 410-323-1607; Email: mobuszewski2001 [at] comcast.net. Go to http://baltimorenonviolencecenter.blogspot.com/
"The master class
has always declared the wars; the subject class has always fought the battles.
The master class has had all to gain and nothing to lose, while the subject
class has had nothing to gain and everything to lose--especially their
lives." Eugene Victor Debs
