The Presidency and War Powers

As discussion heats up about the Authorization for the Use of Military Force (AUMF) against ISIS that was submitted to Congress this week by President Obama, it is important to remember that the balance between presidential war powers and Congressional oversight has been a source of conflict for a long time.

Our Constitution gives Congress the responsibility to declare and fund war but also gives the president the responsibilities associated with being our Commander-in-Chief. Over the years, there have been attempts to pass legislation to adjust and clarify the roles. For example, immediately after the bombing of Pearl Harbor, Congress gave sweeping powers to the President via the War Powers Act of 1941 that would have otherwise been deemed unconstitutional. President Nixon's secret bombing of Cambodia led to Congress passing the War Powers Resolution of 1973 to reign in executive overreach. During much of the Cold War, these issues were avoided by the use of our intelligence services to oversee covert military actions around the globe.

Following the 9/11 terrorist attack, we saw the limits of Congressional oversight when our intelligence services were manipulated to make a case for war and the majority of elected officials - in the grip of fear and anger that overwhelmed the country - failed to challenge White House assertions. The result was the AUMF authorizing President Bush to invade Iraq.

I provide those few examples to demonstrate that over the course of our history, there have been both attempts to clarify the roles outlined in the Constitution as well as various maneuvers used to circumvent them. That is important to keep in mind as we watch conservatives argue that the President's AUMF against ISIS is too limiting on presidential war powers and liberals argue that it is an endorsement for unlimited presidential war making.

Back in March 2013, President Obama gave a speech in which he attempted to begin a conversation about finally ending this indefinite war against terrorism. It was an unprecedented suggestion that the presidential war powers granted following 9/11 be rolled back.

...all these issues remind us that the choices we make about war can impact -- in sometimes unintended ways -- the openness and freedom on which our way of life depends. And that is why I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorism without keeping America on a perpetual wartime footing.

The AUMF is now nearly 12 years old. The Afghan war is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states.

Of course, just as the Afghan war was coming to an end, we saw the emergence of ISIS - which has been viewed as a credible threat that must be dealt with. But it is very different from the one we faced after the 9/11 attack in this country. As such, the President's justification for military action is based more on the current threat to our allies in the Middle East and the potential threat on our shores if left unchecked.

Recently President Obama summarized the current situation this way:

So the biggest challenge we have right now is disorder. Failed states. Asymmetric threats from terrorist organizations. And what I've been trying to do is to make sure that over the course of the last six years and hopefully the next two, we just have more tools in our toolkit to deal with the actual problems that we have now and that we can project into the future, rather than just constantly relying on the same tools that we used when we were dealing with Germany and Japan in World War II...

But this is going to be a generational challenge in the Muslim world and the Middle East that not only the United States but everybody's going to have to deal with. And we're going to have to have some humility in recognizing that we don't have the option of simply invading every country where disorder breaks out. And that to some degree, the people of these countries are going to have to, you know, find their own way. And we can help them but we can't do it for them.

What he is saying is that it is time for this country to recognize that the challenges we face today around the globe are very different than they were 60 years ago and we need to adapt both our thinking and our strategies for dealing with them. The good news is that the whole idea of a world war might be extinct if, for no other reason, it is likely to mean mutually assured destruction. But the question now is...how do we adjust our understanding of "war powers" to these "asymmetric threats from terrorist organizations?"

To that question we can add the fact that - given our current polarized political climate - it is almost impossible to imagine a Congress that can actually perform the function given to them by the Constitution on matters of war.

These are extremely difficult questions with which we must grapple when it comes to the current question before Congress - as well as into the future.