Last Friday, Joe Biden announced that U.S. forces had dropped seven 500-pound bombs on a small building complex in Syria believed to be used by members of an Iranian-backed militia responsible for a rocket attack on U.S. forces in neighboring Iraq earlier last month. Already, it is easy to get confused. How big, exactly, is a 500 pound bomb? Why are we striking Syria if the original attack took place in Iraq? What, exactly, is an Iranian-backed militia, and how do we know that’s what we hit?
The U.S. government has, for the past 20 years, asked us to assume that they know the answers to these questions, when often they do not. Above these details, of course, floats a bigger ask: that the president alone retains the power to make these violent decisions, absent any input from the other members of the republic.
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Biden’s Syrian strike immediately raised legal questions. The administration notified Congress of the strikes as much as 48 hours after they had been launched, and justified them to the United Nations in a letter claiming that the attack was self defense. Almost a week later, the administration has yet to brief Senators directly on their legal justification for the attacks.
This is not, of course, the way it was supposed to be. Congress, a representative body of elected officials, is supposed to issue a formal declaration when the U.S. wishes to kill citizens of another country. The President, or commander-in-chief, is then responsible for executing the violence itself. In the 78 years and change since Congress’s last declaration of war, we have largely done away with the first step in that process, instead granting the president an ever-expanding authority to wage war on whoever he desires with a broad arsenal of weapons.
This precedent was solidified after 9/11, when Congress passed two successive Authorization for Use of Military Force resolutions in 2001 and 2002, giving the President legal authority to wage war against “those responsible for the 9/11 attacks” and Iraq, respectively. The Constitution, for all its faults, at least attempted to make the process of waging war require a broad buy-in from the republic’s various factions. But in the past half-century, we’ve completely scrapped that system, yet somehow managed to wage an enormous amount of war.
The early 2000s AUMFs, for example, have been applied broadly and liberally to various conflicts and flashpoints over the past 20 years, some of which have spawned separate legal precedents along the way. Chris Anders, the director of the ACLU’s Democracy Division, told Rolling Stone that the Obama-era conflict in Libya was also a major tipping point. In 2011, for instance, the Justice Department’s Office of Legal Counsel ruled that “The President had the constitutional authority to direct the use of military force in Libya because he could reasonably determine that such use of force was in the national interest.”
And that was that: Obama got his war — in part because, Anders says, the Oiffce for Legal Counsel has become “a much more politicized office, where sometimes they’re giving the results that the president wants.”
“It’s like any child with their parents: if they keep getting away with it and keep getting away with it, then there are no more rules. That [Libya decision] became the basis for President Trump’s Syria bombing. It is a loaded gun that just sits there.”
That kind of power is seductive, and for the past three presidents, has proven impossible to resist. “I’m skeptical that the executive branch will ever voluntarily give up those powers,” Bernadette Meyler, a professor at Stanford Law who has studied executive power in the U.S., told Rolling Stone. “The solution is for Congress to get its act together and try to rein in executive power.” But this is easier said than done, Meyler said. “I think that Congress is not really that excited to rein in a president of their own political party, because it’s so hard to get things done Congressionally with political polarization as it is.”
Rep. Barbara Lee, the only Congressperson to vote against the 2001 Authorization for Use of Military Force after 9/11, has led periodic charges at repealing both resolutions, and the bipartisan criticism of Trump’s excesses — particularly his support of the brutal Saudi Arabian war in Yemen — has reignited congressional interest in curbing the president’s war powers.
Still, we’ve been burned before, Anders said. “[There were] really high expectations that people had with President Obama when he took office, in terms of ending what we’re now calling ‘the forever war,’” Anders said, adding that while Obama made some important changes toward transparency, his policies also institutionalized some aspects of war that even his predecessor George Bush had not. “It was kind of a real reality check for anyone who cares about war authority.”
During the Obama administration, Anders said there was a sense among White House national security staffers that “this was a president you could trust.” His team at the ACLU would go into meetings and be assured that they could trust the system, because good people were running it. “What we said all the time is that even if you do trust Obama, there will be a president who you can’t trust, and won’t be trusted with these powers. And that’s exactly what we got.”
For what it’s worth, Anders said, Biden’s record on use of force is more measured than either Obama or Trump’s. At the end of February, perhaps pre-empting the strikes he would soon launch, Biden announced a top-down review of the government’s “use of force” protocols.
Like any new president of the modern era, Biden has inherited the power to kill whomever he pleases. The guns are all in his hands. Disarming him, Anders said, will take buy in from both the legislative branch and the new administration: Congress must act to regain some of their control over war, but they won’t get far unless Biden agrees to give them up.
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