Use of Force Under U.S. Law:

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1 Prof. Moore s National Security Law Use of Force Under U.S. Law: Background and Theory Prof. Robert F. Turner, SJD

2 Prof. John Walter Mitty Moore

3 Prof. John Walter Mitty Moore JOHN NORTON MOORE

4 Prof. John Walter Mitty Moore

5 As we meet today, your Prof. Walter Mitty Moore nearly 80-year-old professor is in Texas for the World Powerlifting Championships trying to win a medal for the U.S. Masters Team. He has held several national and world records, and currently presses more than 280 lbs!

6 Prof. Moore s National Security Law Use of Force Under U.S. Law: Background and Theory Prof. Robert F. Turner, SJD

7 The Modern Conventional Wisdom Prof. Arthur Schlesinger, Jr. [N]o one can doubt that the original intent of the Framers was to assure Congress the major role in the formulation of foreign policy....

8 The Modern Conventional Wisdom Prof. Arthur Schlesinger, Jr. Yet the present [Reagan] administration somehow manages to champion a theory of inherent presidential prerogative in foreign affairs that would have appalled the Founding Fathers. The theory of presidential supremacy has only crystallized in recent times.... -Testimony before Senate Foreign Relations Committee (1988)

9 The Modern Conventional Wisdom Dycus et al., National Security Law How is the responsibility to provide for the common defence allocated among the three branches of government? Judging simply by the proportion of words, the extensive national security powers given Congress in Article I appear to overwhelm the meager listing for the President in Article II.... Other provisions, particularly the one for impeachment of the President, also suggest legislative dominance....

10 The Modern Conventional Wisdom Dycus et al., National Security Law By contrast, the President is provided only one obvious national security power by being designated the Commander in Chief. Moreover, the President is directed to command the armed forces only when they are called into the actual service of the United States.... The other Article II grants that may concern national security seem modest in comparison to powers conferred upon Congress: to appoint and receive ambassadors and ministers, and to make treaties (both powers shared with the Senate). - Stephen Dycus et al., National Security Law 9-10 (2002).

11 Is This Serious Scholarship? (another cheap shot at our competition) Moreover, the President is directed to command the armed forces only when they are called into the actual service of the United States. -Dycus et al. -National Security Law The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;.... -U.S. Const. Art. II, 2 NOTE: Art, I sec. 8 cl.15 empowers Congress to call forth the Militia for various purposes.

12 No Mention of Executive Power Clause The other Article II grants that may concern national security seem modest in comparison to powers conferred upon Congress: to appoint and receive ambassadors and ministers, and to make treaties (both powers shared with the Senate). -Dycus et al., National Security Law

13 No Mention of Executive Power Clause The other Article II grants that may concern national security BREAKING seem modest THE in CODE comparison to powers conferred They upon missed Congress: the most to appoint and receive important ambassadors grant of and presidential power in the ministers, and to make treaties (both powers Constitution shared with the Senate). -Dycus et al., National Security Law

14 No Mention of Executive Power Clause The executive power The other Article II grants that may concern national shall security be seem vested modest in a in comparison to powers President conferred of upon the Congress: United to appoint and States receive of America. ambassadors.. and. ministers, and to make treaties (both powers shared with the Senate). U.S. Const. Art. II, Sec. 1 -Dycus et al., National Security Law

15 Rep. Madison on the Meaning of the Executive Power Clause (June 1789) [T]he Executive power being in general terms vested in the President, all powers of an Executive nature, not particularly taken away must belong to that department. letter to Edmund Pendleton, 21 June 1789, 5 Writings of James Madison n.

16 Thomas Jefferson Memorandum to President Washington (April 24, 1790) The Constitution.... has declared that the Executive powers shall be vested in the President, submitting special articles of it to a negative by the Senate....

17 Thomas Jefferson Memorandum to President Washington (April 1790) The transaction of business with foreign nations is executive altogether;... except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly....

18 Washington s Diary April 27, 1790 Madison and Jay agreed with Jefferson that the Senate had no Constitutional right to interfere in foreign affairs beyond narrow negatives over treaties and appointments.

19 Washington s Diary April 27, 1790 Madison and Jay agreed with Jefferson that the Senate had no Constitutional right to interfere in foreign affairs beyond narrow negatives over treaties and appointments.

20 Alexander Hamilton First Pacificus Letter (1793) The general doctrine of our Constitution... is that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument.... It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general executive power vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.

21 Alexander Hamilton First Pacificus Letter (1793) The general doctrine of our Constitution... is that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument.... It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general executive power vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.

22 Prof. Quincy Wright on the Content of Executive Power [W]hen the constitutional convention gave executive power to the President, the foreign relations power was the essential element in the grant, but they carefully protected this power from abuse by provisions for senatorial or congressional veto. The Control of American Foreign Relations 147 (1922)

23 Competing Theories Some points of broad agreement: Most recognize president s right to respond to attacks on U.S. territory or armed forces. Most agree President needs approval of Congress to launch a major war in a nondefensive setting.

24 Competing Theories Some points of disagreement: Some argue the President may use the armed forces as he sees fit anywhere without congressional approval. Others argue Congress must approve every use of armed force outside United States unless we are attacked first. Many recognize right of president to assist victims of sudden attack until Congress can meet and decide. Prof. Moore: Commitment of regular armed forces to sustained hostilities requires congressional approval. Prof. Turner: President may lawfully act defensively but not aggressively with whatever resources Congress has provided, but is prudent policy to get Congress on board.

25 The Constitutional Convention

26 Constitutional Convention August 17, 1787 Madison and Gerry moved to strike make War and give Congress instead the more limited power to declare War... ; leaving the Executive the power to repel sudden attacks. 2 Max Farrand, Records of the Federal Convention 318.

27 Constitutional Convention August 17, 1787 When Rufus King noted that make War might be understood to conduct it, which was an Executive function, the final vote was 8-1 for Madison s amendment. 2 Max Farrand, Records of the Federal Convention 319 n.

28 Constitutional Convention August 17, 1787 Even Roger Sherman, who preferred make War, contended that The Executive shd. be able to repel and not to commence war. 2 Max Farrand, Records of the Federal Convention 319.

29 Constitutional Convention August 17, 1787 Pierce Butler then moved to give the Legislature power of peace, as they were to have that of war. After a brief debate, this motion failed by a vote of Max Farrand, Records of the Federal Convention 319.

30 Constitutional Convention August 17, 1787 It seems an article of faith today that Pierce Butler then moved to give the Congress can at any time legislate an end Legislature power of peace, as they were to a war (as it did in Indochina). But given to the have view that that of exceptions war. to Executive After Power a brief should debate, be construed this motion strictly, failed and this by a clear vote unanimous of rejection of giving Congress a role in making peace at the end of a war, should that be reconsidered? 2 Max Farrand, Records of the Federal Convention 319.

31 Constitutional Convention August 17, 1787 Pierce Remember, Butler then moved Congress to give the Legislature power of peace, as they were was joined with the to have that of war. After President a brief debate, only this in motion the failed by a vote of decision to declare War, not to conduct or end it. 2 Max Farrand, Records of the Federal Convention 319.

32 Constitutional Convention I am August not questioning 17, 1787 the clear power of Congress It seems an article of faith today that Pierce Butler then moved to give the Congress Legislature to can undermine at any time legislate power of peace, a as war an end they by were to a war (as it did in Indochina). But given to have that of war. refusing new requests the view that exceptions to Executive After Power a brief should debate, be construed this motion strictly, failed and this by a clear vote unanimous of for appropriations rejection of giving or Congress troops. a role in making peace at the end of a war, should that be reconsidered? 2 Max Farrand, Records of the Federal Convention 319.

33 Remember Hamilton s Explanation First Pacificus Essay (1793) It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general executive power vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.

34 Remember Hamilton s Explanation Thus, First it can Pacificus be argued Essay that (1793) Congress has no power to legislate an end to an ongoing war (although it clearly has no duty to provide new troops, equipment, or money and thus as a practical matter Congress can end any major war quickly). It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general executive power vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.

35 Remember Hamilton s That view would be consistent Explanation with Madison s 1789 argument that Thus, First the it Senate can Pacificus be argued had Essay no that role (1793) Congress in the removal has no power of the to Secretary legislate an of end to an Foreign ongoing Affairs war (although since it it was clearly only has no joined duty to in provide the appointment new troops, phase equipment, or and money as an and exception thus as a practical to the executive matter Congress power can its end role any should major war be quickly. narrowly construed. It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general executive power vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.

36 Congress May Authorize Hostilities Without Formlly Declaring War Bas v. Tingy (1800) Talbot v. Seeman (1801)(Marshall, C.J.) SFRC Rep t on National Commitments Res. The committee does not believe that formal declarations of war are the only available means by which Congress can authorize the President to initiate limited or general hostilities. Joint resolutions such as those pertaining to... the Gulf of Tonkin are a proper method of granting authority. Sen. Rep t No (1967)

37 Force Short of War (United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990). The United States frequently employs Armed Forces outside this country over 200 times in our history for the protection of American citizens or national security.

38 The War Power of Congress The scholarly debate too often focuses upon the meaning of the term war A better approach may be to begin with these observations: Article I, Sec. 8, of the Constitution gives Congress not the war power but the power to Declare War The term of art Declaration of War was well known to the Founding Fathers, who were well read on the Law of Nations Grotius De Jure Belli ac Pacis was the second most popular lawbook in Colonial Virginia private libraries As an exception to the President s Executive powers, the power to declare war was expected to be construed narrowly.

39 Hugo Grotius on Declarations of War [N]o declaration [of War] is required when one is repelling an invasion, or seeking to punish the actual author of some crime. Grotius, De Jure Belli ac Pacis, bk. III, Ch. 3

40 Alberico Gentili on Declarations of War [W]hen war is undertaken for the purpose of necessary defence, the declaration is not at all required. 2 Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]).

41 Alberico Gentili on IS THE POWER TO DECLARE WAR AN ANACHRONISM TODAY? Declarations of War Article I, Section 8, Clause 11 of the [W]hen war is undertaken for the Constitution reads: purpose of necessary defence, the declaration Congress is not shall at have all required. the Power.. 2 Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]).. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;....

42 Letters Alberico of Marque Gentili and IS THE POWER TO DECLARE on Reprisal were outlawed by Declaration of Paris WAR Declarations in 1856 AN ANACHRONISM and are now of an War anachronism. TODAY? Article I, Section 8, Clause 11 of the [W]hen war is undertaken for the Constitution reads: purpose of necessary defence, the declaration Congress is not shall at have all required. the Power.. 2 Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]).. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;....

43 The type of War associated with formal Declarations IS Alberico of War was THE POWER Gentili outlawed TO DECLARE on by Kellogg-Briand and the UN Charter. Is WAR Declarations AN ANACHRONISM of War TODAY? that part of Clause 11 now an anachronism Article I, Section as well? 8, Clause 11 of t reads: [W]hen war is undertaken for the purpose of necessary defence, the declaration Congress is not shall at have all required. the Power.. 2 Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]).. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;....

44 The type of War associated with formal Declarations IS Alberico of War was THE POWER Gentili outlawed TO DECLARE on by Kellogg-Briand and the UN Charter. Is that part of Clause 11 now an anachronism as well? I m not suggesting treaties have WAR Declarations AN ANACHRONISM of War TODAY? altered the Constitution. Should [W]hen the Article United I, Section war is States 8, Clause undertaken ever 11 decide of the for the to Constitution reads: purpose issue illegal of necessary Letters of defence, Marque the declaration and Congress Reprisal shall not or to at have formally the required. Power... Declare 2 Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]). To declare War, War, Congress grant Letters would of have Marque to approve and Reprisal, both and actions make Rules under concerning the Constitution. Captures Land and Water;....

45 The type of War associated with formal Declarations IS Alberico of War was THE POWER Gentili outlawed TO DECLARE on by Kellogg-Briand and the UN Charter. Is that part of Clause 11 now an anachronism as well? But no nation in the world has WAR Declarations AN ANACHRONISM of War TODAY? clearly issued a formal [W]hen Declaration Article I, Section war is undertaken of 8, War Clause since 11 of the for the World Constitution reads: purpose War II. of necessary defence, the declaration Congress is shall not at have all the required. Power... 2 Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]). To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;....

46 Jefferson on Transferring War Power (1789) We have already given in example one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay. 15 Papers of Thomas Jefferson 397

47 Jefferson on Transferring War Power (1789) What did Jefferson mean when he said we We had have transferred already given the in power example to one declare effectual war check (the to language the Dog used of war in by his original transferring draft, which the power he apparently of letting him decided loose produced from the Executive a mixed metaphor to the and Legislative changed to body, letting from him those [the who dog are of war] to loose ) spend to from those the who Executive are to pay. to the Legislative branch? 15 Papers of Thomas Jefferson 397

48 Jefferson on Transferring Article 9 of the Articles of What Confederation did Jefferson War Power provided: mean (1789) when he said we We had have transferred already given the in power example to one declare The effectual United war check (the States to language the in Dog used of war in by his original Congress transferring draft, assembled, which the power he apparently shall of letting him decided have loose the produced from sole the and Executive a mixed exclusive metaphor to the and right Legislative changed and power to body, letting of from determining him those [the who dog are of war] on to loose ) spend peace to and from those war the who. Executive... are to pay. to the Legislative branch? 15 Papers of Thomas Jefferson 397

49 Jefferson on Transferring Article 9 of the Articles of What Confederation did Jefferson War Power provided: mean (1789) when he said we We had have transferred already given the in power example to one declare The effectual United war check (the States to language the in Dog used of war in by his original Congress transferring draft, assembled, which the power he apparently shall of letting him decided have loose the produced from sole the and Executive a mixed exclusive metaphor to the and right Legislative changed and power to body, letting of from determining him those [the who dog are of war] on to loose ) spend peace to and from those war the who. Executive... are to pay. to the Legislative branch? I submit that the most logical explanation for Jefferson s comment is that he was conceding that, in nature (as reflected in the practice of every major country at the time, and in the writings of the major publicists) the power to declare and wage was was vested in the king or other executive. 15 Papers of Thomas Jefferson 397

50 Jefferson on Transferring If this Article is true, 9 then of the Articles like his rival of Hamilton What Confederation did Jefferson War Power provided: believed mean (1789) when he said I submit we We had that have transferred the most logical already given explanation in power example to for that the exception to the Jefferson s comment is that he was conceding one executive declare effectual war check (the to language the Dog used of war in by his that, in The nature United power (as reflected States given in to in the practice of Congress every original Congress transferring major to draft, country declare assembled, which the at the power war he time, apparently was shall of and letting the him to writings be decided have loose construed of the the produced from major sole strictly. the publicists) and Executive a mixed exclusive the metaphor to power the to declare and right Legislative changed and and wage power was to body, letting was of from determining vested him those [the the who dog king are of or other war] on executive. to loose ) spend peace to and from those war the who. Executive... are to pay. to the Legislative branch? 15 Papers of Thomas Jefferson 397

51 George Washington on Offensive vs. Defensive Force (1793) The Constitution vests the power of declaring war with Congress. Therefore, no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.

52 George Washington on Offensive vs. Defensive Force The Constitution Offensive here vests is the used power in of declaring its jus war ad bellum with Congress. sense, and in Therefore, today s no language offensive would expedition of importance mean non-defensive can be undertaken or until aggressive. after they have deliberated upon the subject, Such expeditions and authorized today such a measure. would be in violation of Art. 2(4) of the UN Charter.

53 An important caveat I am discussing the issue of when the Constitution requires legislative consent to resort to the use of armed force abroad.

54 An important caveat I am discussing the issue of when the Constitution requires legislative consent to resort to the use of armed force abroad. As a matter of wise public policy, I strongly believe getting Congress on board early makes great sense even when not required.

55 A Misleading Precedent Jefferson and the Barbary Pirates

56 Jefferson s First Annual Message to Congress (8 December 1801) One of the Tripolitan cruisers having fallen in with, and engaged the small schooner Enterprise, commanded by Lieutenant Sterret, which had gone as a tender to our larger vessels, was captured, after heavy slaughter of her men, without the loss of a single one on our part. Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew. The legislature will doubtless consider whether by authorizing measures of offence, also, they will place our force on an equal footing with that of its adversaries.

57 Navy Secretary s Instructions to Captain Richard Dale (20 May 1801) I am... instructed by the President to direct, that you proceed with all possible expedition, with the squadron under your command, to the Mediterranean.... Should you find on your arrival at Gibraltar that the Barbary Powers, have declared War against the United States, you will then distribute your force in such manner, as your judgment shall direct, so as best to protect our commerce & chastise their insolence by sinking, burning or destroying their ships & Vessels wherever you shall find them. 1 Office of Naval Records and Library, Naval Documents Related to the United States Wars with the Barbary Powers 465, 467 (GPO 1939).

58 Captain Dale s Orders to Lt. Sterett (off Tripoli, 30 July 1801) Sir: On the receipt of this, you will please to proceed with the United States Schooner under your Command, with all possible dispatch for the Island of Malta, there to take in [a]s much water as you can possibly bring back. In your Passage to and from Malta you will not chace out of your way particularly in going, as you have not much water on board. [S]hould you fall in with any of the Tripolian Corsairs that you are confident, you can Manage, on your Passage to Malta you will heave all his Guns Over board Cut away his Masts, & leave him In a situation, that he can Just make out to get into some Port, but if coming back you will bring her with you if you think you can doe it with safety. 1 Office of Naval Records and Library, Naval Documents Related to the United States Wars with the Barbary Powers 465, 467 (GPO 1939).

59 Jefferson s May 15, 1801 Cabinet Meeting Notes 1 May 15, 1801 Shall the squadron now at Norfolk be ordered to cruise in the Mediterranean What shall be the object of the cruise Lincoln. our men of war may repel an attack on individual vessels, but after the repulse, may not proceed to destroy the enemy; Gallatin. to declare war & to make war is synonymous. The Exve. can not put us in a state of war, but if we be put in that state either by the decl. of Congress or of the other nation, the command & direction of the public force then belongs to the Exve.

60 Jefferson s May 15, 1801 Cabinet Meeting Notes 2 Smith. if a nation commences war, the Exve is bound to apply the public force to defend the country. Dearborne. the expedition should go forward openly to protect our commerce against the threatened hostilities of Tripoli. Madison. that the cruise o t to be undertaken, & the Subject openly declared to every nation. all concur in the expediency of cruise. Whether the captains may be authorized, if war exists, to search for & destroy the enemy: wherever they can find them? all except mr. L. agree they should, M.G.&S. think they may pursue into the harbours, but M. that they may not enter but in pursuit.

61 The Real Jefferson Precedent In reality, President Jefferson ordered two-thirds of the new American Navy half-way around the world with orders to sink and burn enemy ships without even formally notifying Congress until more than six months after they left port. And no one in Congress complained.

62 Alexander Hamilton on Defensive War [The Constitution provides that] The Congress shall have power to declare War; the plain meaning of which is that, it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received; in other words, it belongs to Congress only, to go to War. But when a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory; it is at least unnecessary. 25 The Papers of Alexander Hamilton

63 The Prize Cases (1866) If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be unilateral. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.

64 Confusing the Offensive vs. Defensive Distinction in Jus Ad Bellum and Jus in Bello From Jefferson s 1801 cabinet debate to Operation Desert Storm, there has been confusion about the meaning of the terms offensive and defensive in deciding whether congressional approval is necessary. A Declaration of War is governed by the jus ad bellum, or the international law governing the initiation of coercion. How a State defensively responds to aggression (whether by blocking punches or by launching a massive counterattack) is governed by the jus in bello a different set of legal rules. The key test in assessing the need for a Declaration of War is not how a military operation is to be conducted, but why it is to be conducted.

65 Removing Troops from Europe Congressional Record (December 27, 1922) Mr. Reed. Does the Senator think and has he not thought for a long time that the American troops in Germany ought to be brought home? Mr. Borah. I do. [But] [y]ou can not bring them home, nor can I. Mr. Reed. We could make the President do it. Mr. Borah. We could not make the President do it. He is Commander in Chief of the Army and Navy of the United States, and if in the discharge of his duty he wants to assign them there, I do not know of any power that we can exert to compel him to bring them home. We may refuse to create an Army, but when it is created he is the commander. Mr. Reed. I wish to change my statement. We can not make him bring them home.

66 John Bassett Moore on the 1928 Kellogg-Briand Pact Self-defense by a nation is not war. When once you have outlawed war, do not use the word war any more. [Thus many talk today of the Law of Armed Conflict rather than the Law of War]

67 United Nations Charter (1945) Signed June 26 Approved by Senate July 28 by a vote of 89-2 (four absent Senators announced support)

68 For further information Harv. J. L. & Pub. Pol. 533 (1996).

69 The Charter Obligation Senate Debate on Consenting to Ratification of the United Nations Charter (1945)

70 SFRC Chairman Tom Connally on War and UN Charter As to declaring war, that is not a question which is involved here at all. These forces are not exacted to make war. They are exacted as peace forces, to undertake to preserve peaceful nations against aggression and attack.i am convinced that the Presidential use of armed forces in order to participate in the enforcement action under the Charter would in no sense constitute an infringement upon the traditional power of Congress to declare war. 91 Cong. Rec (1945).

71 Unanimous SFRC Report on UN Charter (1945) Preventative or enforcement action by these [US] forces upon the order of the Security Council would not be an act of war but would be international action for the preservation of the peace and for the purpose of preventing war. Consequently, the provisions of the Charter do not affect the exclusive power of the Congress to declare war. The committee feels that a reservation or other congressional action would also violate the spirit of the United States Constitution under which the President has well-established powers and obligations to use our armed forces without specific approval of Congress. Senate Foreign Relations Committee Report recommending consent to ratification of UN Charter (1945).

72 HFAC Report on UN Participation Act (Unanimous 1945) The basic decision of the Senate in advising and consenting to ratification of the Charter resulted in the undertaking by this country of various obligations which will actually carried out by and under the authority of the President as the Chief Executive, diplomatic, and military officer of the Government. Among such obligations is that of supplying armed forces to the Security Council concerning which provision is made in section 6. [T]he ratification of the Charter resulted in the vesting in the executive branch of the power and obligation to fulfill the commitments assumed by the United States thereunder. House Foreign Affairs Committee Rep t No (1945).

73 Congressional Expectations on UN Military Operations The Wheeler Amendment to the 1945 UN Participation Act

74 The Wheeler Amendment to the UNPA (December 4, 1945) [T]he President shall have no authority, to make available to the Security Council any armed forces to enable the Security Council to take action under article 42 of said charter, unless the Congress has by appropriate act or joint resolution authorized the President to make such forces available in the specific case in which the Council proposed to take action.

75 Senate Action on the Wheeler Amendment The Wheeler Amendment was defeated by a margin of more than 7 to 1 (9 yeas, 65 nays). [UNPA then passed 65-7 (9:1 margin)]

76 The Myth of Presidential Wars The Korean Conflict Did Truman Ignore Congress?

77 SFRC Chairman Tom Connally on Truman s Phone Call (June 26, 1950) He [Truman] hadn t as yet made up his mind what to do. Do you think I ll have to ask Congress for a declaration of war if I decide to send American forces into Korea? the President asked. If a burglar breaks into your house, I said, you can shoot at him without going down to the police station and getting permission. You might run into a long debate by Congress, which would tie your hands completely. You have the right to do it as commander-in-chief and under the U.N. Charter. My name is Tom Connally 246 (1954).

78 Senate Majority Leader s Advice to President Truman on Korean War 1 [After Sec. Acheson recommended that the President go before a joint session of Congress to seek a formal resolution endorsing his actions] Senator [Scott] Lucas said that he frankly questioned the desirability of this. He said that things were now going along well.he said that the President had very properly done what he head to without consulting the Congress. He said the resolution [proposed by Acheson] was satisfactory and that it could pass. He suggested as an alternative [to going before a joint session of Congress] that the President might deliver this message as a fireside chat with the people of the country.

79 Senate Majority Leader s Advice to President Truman on Korean War 2 Senator Lucas said that most of the members of Congress were sick of the attitude taken by Senators Taft and Wherry.Senator Lucas said that he felt he knew the reactions of Congress. He thought that only Senator Wherry had voiced the view that Congress should be consulted. Many members of Congress had suggested to him that the President should keep away from Congress and avoid debate.... He did not think that Congress was going to stir things up. Top Secret MemCon by Amb. Phillip Jessup of 3 July 1950 Blair House Meeting, in VII Foreign Relations of the United States 1950 Korea (1976).

80 President Truman s Response to Senate Majority Leader Scott Lucas The President said that it was necessary to be very careful that he would not appear to be trying to get around Congress and use extra-constitutional powers.the President said that it was up to Congress whether such a resolution should be introduced, that he would not suggest it. Top Secret MemCon by Amb. Jessup of 3 July 1950 Blair House Meeting, in VII Foreign Relations of the United States 1950 Korea (1976).

81 The Myth of Presidential Wars The Vietnam Conflict: Was Congress Bypassed?

82 Rep. Paul Findley (1961) (Congressional Record, May 23, 1961 p. 8587) U.S. combat forces are the most effective deterrent to aggression, and we should publicly offer such forces to South Vietnam without delay. No patriotic American will ever criticize President Kennedy for committing combat forces to protect freedom-loving people from aggression. Every patriot has the right and duty to criticize ineptitude and the toolittle, too-late policies which invite aggression.

83 Congress and Vietnam The Gulf of Tonkin Resolution (August 1964)

84 The Gulf of Tonkin Resolution Sec. 2. The United States regards as vital to its national interest and to world peace the maintenance of international peace and security in southeast Asia. Consonant with the Constitution of the United States and the Charter of the United Nations and in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United States is therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.

85 The Gulf of Tonkin Resolution The SEATO Protocol States were [South] Vietnam, Laos, and Cambodia. Sec. 2. The United States regards as vital to its national interest and to world peace the maintenance of international peace and security in southeast Asia. Consonant with the Constitution of the United States and the Charter of the United Nations and in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United States is therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.

86 Senate Debate on Tonkin Resolution Mr. Cooper. Does the Senator consider that in enacting this resolution we are satisfying that requirement [the constitutional processes requirement] of Article IV of the Southeast Asia Collective Defense treaty? In other words, are we now giving the President advance authority to take whatever action he may deem necessary respecting South Vietnam and its defense, or with respect to the defense of any other country included in the treaty? Mr. Fulbright. I think that is correct.

87 Senate Debate on Tonkin Resolution Mr. Cooper. Then, looking ahead, if the President decided that it was necessary to use such force as could lead into war, we will give that authority by this resolution? Mr. Fulbright. That is the way I would interpret it. If a situation later developed in which we thought the approval should be withdrawn, it could be withdrawn by concurrent resolution. 110 Cong. Rec (1964).

88 Senate Debate on Tonkin Resolution Mr. Cooper. Then, looking ahead, if the President Particularly decided that disillusioning it was necessary to use such over force the as could years was lead the into war, we will give performance that authority of by Senator this resolution? J. Mr. Fulbright. William That is Fulbright. the way I would interpret it. If a situation Stanford later developed Dean John in which Hart we Ely, thought the approval should be withdrawn, War & Responsibility it could be withdrawn 16. by concurrent resolution. 110 Cong. Rec (1964).

89 Public Opinion and the Tonkin Gulf Response In early 1964, a majority of Americans expressed dissatisfaction with Johnson s handling of the war in Vietnam. However, after Johnson called for a resolution to permit him to respond to the alleged attacks on U.S. ships in the Gulf of Tonkin, his support zoomed to 85 percent. - The Lessons of the Vietnam War 175 (Jerold M. Starr, ed, 1991)

90 Senator Russell Long on Tonkin Gulf Resolution I think it is time for the Hanoi regime to know that so far as we are concerned we have declared the war we are fighting. We declared a limited war. We did that at the time of the Gulf of Tonkin incident. 112 Cong. Rec (1966).

91 Senator Thomas Eagleton (1970) Although the existence of the Tonkin Gulf Resolution did not make the war we have waged in South Vietnam any wiser or any more explicable, it did make it a legitimate war authorized by the Congress.

92 Prof. John Hart Ely on the Legality of the Vietnam War [A]s the constitutional requirement of congressional authorization has historically been understood, Congress does indeed appear (years of denial and doubletalk notwithstanding) to have authorized each of these phases of the war. Ely, War & Responsibility 12 (1993)

93 Early Congressional Support for Vietnam 1955: Senate approved SEATO Treaty with 2 dissents 1964: Tonkin Resolution approved (Appropriated more than three times LBJ s request for Vietnam along with enacting resolution) 1966: $13 billion supplemental appropriation passed in House and 87-2 in Senate 1967: $12 billion supplemental passed in House and 77-3 in Senate (House rejected amendment to prohibit funds for combat over North Vietnam 77-3)

94 Senator Jacob Javits on Vietnam 1966: It is a fact, whether we like it or not, that by virtue of having acted on the resolution of August 1964, we are a party to present policy. 1966: In my own thinking there can no longer be any doubt about the legality of our assistance to the people of South Vietnam. I have never doubted the lawfulness of U.S. assistance to the Republic of Vietnam. 1973: [The War Powers Resolution is] a bill to end the practice of presidential war and thus to prevent future Vietnams. The War Powers Act would assure that any further decision to commit the United States to any warmaking must be shared in by the Congress to be lawful.

95 Senator Jacob Javits on Vietnam 1966: It is a fact, whether we like it or not, that by virtue of having acted on the resolution of August 1964, we are a party to And present thus policy. was 1966: In my own thinking there can no longer be any doubt about the legality of our assistance to the people of South Vietnam. I have born never the doubted 1973 the lawfulness of U.S. assistance to the Republic of Vietnam. War Powers 1973: [The War Powers Resolution is] a bill to end the practice of presidential war and thus to prevent future Vietnams. The Resolution. War Powers Act would assure that any further decision to commit the United States to any warmaking must be shared in by the Congress to be lawful.

96 Operations in Libya (2011)

97 UNSC Res (17 March 2011) 4. Authorizes Member States... acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory....

98 The U.S. Role The White House Office of the Press Secretary For Immediate Release June 15, 2011 Dear Mr. Speaker: (Dear Mr. President:) I am providing this supplemental consolidated report, prepared by my Administration and consistent with the War Powers Resolution (Public Law ), as part of my efforts to keep the Congress informed about deployments of U.S. Armed Forces equipped for combat....

99 The U.S. Role This is the language used by six prior presidents who contended the War Powers The White House Resolution is UNCONSTITUTIONAL. Office of the Press Secretary (Rather than For reporting Immediate Release pursuant to the June 15, 2011 WPR.) Dear Mr. Speaker: (Dear Mr. President:) I am providing this supplemental consolidated report, prepared by my Administration and consistent with the War Powers Resolution (Public Law ), as part of my efforts to keep the Congress informed about deployments of U.S. Armed Forces equipped for combat....

100 The U.S. Role MILITARY OPERATIONS IN LIBYA.... (3) since April 23, [U.S. forces have engaged in] precision strikes by unmanned aerial vehicles against a limited set of clearly defined targets in support of the NATO led coalition's efforts.... With the exception of operations to rescue the crew of a U.S. aircraft on March 21, 2011, the United States has deployed no ground forces to Libya.

101 The U.S. Role MILITARY OPERATIONS IN LIBYA.... Since April 4, U.S. participation has consisted of:.... (3) since April 23, precision strikes by unmanned Is aerial this vehicles legal against under a limited set of clearly defined targets in support of the NATO led coalition's efforts. the. War.. With Powers the exception of operations to rescue the crew of a U.S. aircraft on Resolution? March 21, 2011, the United States has deployed no ground forces to Libya....

102 Questions Does anyone doubt that sending Predator drones over Libyan territory to fire Hellfire missiles at members of that country s armed forces falls under the definition of taking part in hostilities?

103 Meaning of Hostilities [I]t might be possible to come up with language that keyed in on whether U.S. forces have been authorized to use lethal force other than on a selfdefense basis. Prof. Robert Chesney Lawfare Blog

104 The Obama Administration s Position Pentagon General Council Jeh Johnson said we were involved in hostilities and needed congressional approval.

105 The Obama Administration s Position Acting Asst. Att y Gen. (OLC) Carolyn Krass reportedly said we were involved in hostilities and needed congressional approval.

106 The Obama Administration s Position Att y Gen. Eric Holder reportedly said we were involved in hostilities and needed congressional approval.

107 The Obama Administration s Position State Department Legal Adviser Harold Koh said we were NOT involved in hostilities and needed NO congressional approval.

108 The Obama Administration s Position State Department Some might Legal call this Adviser Harold forum Koh said shopping. we were NOT involved in hostilities and needed congressional approval.

109 The Obama Administration s I call it Position ironic. State Department Some might Legal call this Adviser Harold forum Koh said shopping. we were NOT involved in hostilities and needed congressional approval.

110 The Obama Administration s I call it Position ironic. State Department Some might Legal call this Adviser Harold Harold Koh forum Koh and I said have shopping. we were NOT debated involved War in Powers hostilities and needed and congressional other issues dating approval. back more than 25 years.

111 The Obama Administration s I call it Position ironic. State Department Some might Legal call this Adviser Here he is Harold forum in Oct Harold Koh Koh and I said have shopping. we were NOT challenging my debated argument involved War that we in Powers could hostilities and needed and intentionally congressional other issues target dating approval. Saddam Hussein back more than 20 during Operation Desert Storm. years.

112 The Obama Administration s Harold said Position targeting individuals was I call it ironic. State Department Some might Legal call this Adviser Here he Harold assassination is Harold forum Oct Koh Koh and I said have shopping. we were NOT challenging debated involved and my War illegal in Powers hostilities under argument that we could and needed and intentionally congressional other U.S. issues target and dating approval. Saddam Hussein back more international than 20 law. during Operation Desert Storm. years.

113 The Obama Administration s Targeting Position individuals was I call it ironic. State Department Some might In March Legal call 2010, this Harold Adviser Here he Harold assassination is Harold forum Oct Koh Koh and I said have shopping. we were NOT challenging debated involved and my War illegal in Powers hostilities under argument that we could an address to and the American needed and intentionally congressional other U.S. issues target and dating Society of International Law. approval. Saddam Hussein back more international than 20 law. during Operation Desert Storm. years. defended targeting individuals by Predator drones as lawful in

114 Harold Koh s Defense of Libya Operation Quoting Ford and Reagan lawyers, he claimed I continue nearly four decades of dialogue between Congress and Legal Advisers regarding the Executive Branch s legal position on war powers.

115 Harold Koh s Defense of Libya Operation Noting past presidents had largely ignored the WPR, Koh warned about narrow parsing of dictionary definitions so as to avoid unduly hampering future presidents.

116 Harold Koh s Defense of Libya Operation [T]he military operations that the President anticipated were not sufficiently extensive to constitute a war requiring prior specific approval under the Declaration of War Clause.

117 Harold Koh s Defense of Libya Operation [T]he military Obviously, operations he that is the President right but anticipated that were is not sufficiently notextensive the standard to of constitute a war requiring the WPR! prior specific approval under the Declaration of War Clause.

118 Harold Koh s Defense of Libya Operation Scholars will certainly go on debating this issue. But that should not distract those of us in government from the most urgent question now facing us which is not one of law but of policy.

119 Harold Koh s Defense of In other Libya words, Operation if it s good policy, let s not Scholars will certainly go on debating worry about whether we this issue. But that should not distract are breaking those of the us in law? government from the most urgent question now facing us which is not one of law but of policy.

120 Harold Koh s Defense of In other Libya words, Operation if it s good policy, let s not Scholars will certainly go on debating worry about whether we this issue. But that should not distract are breaking Is that those of the the us in law? government from function the most urgent of question the now facing us which is not one of law but of policy. Legal Adviser?

121 Harold Koh s Defense of Libya Operation Harvard s Prof. Jack Noting Goldsmith past presidents noted for had a largely ignored quarter the century WPR,.. Koh. Koh warned about narrow was the parsing leading of and dictionary most definitions vocal academic so as critic to avoid of unduly hampering presidential future unilateralism presidents. in war.

122 Harold Koh s Defense of There is an old Washington adage: Libya Operation Where you stand often Harvard s Prof. Jack Noting Goldsmith past presidents noted for had a largely ignored quarter the century WPR,.. Koh. Koh warned about narrow was the parsing leading of and dictionary most definitions vocal academic so as critic to avoid of unduly hampering presidential future unilateralism presidents. in war. depends upon where you sit.

123 Harold Koh s Defense of There is an old Washington adage: Where you Libya stand Operation often Harvard s Perhaps Prof. you can Jack tell I Noting Goldsmith was past having presidents noted fun for watching had a largely ignored quarter Harold the century Koh WPR, paraphrase.. Koh. Koh warned about narrow was arguments the parsing leading I d of and been dictionary most definitions vocal making academic since so as critic to avoid of unduly hampering presidential future unilateralism presidents. in war. depends upon where you sit.

124 Harold Koh s Defense of There is an old Washington adage: Where you Libya stand Operation often Harvard s Perhaps Prof. you can Jack tell I m Noting Goldsmith having past presidents fun noted watching for had a largely ignored quarter Harold the century Koh WPR, paraphrase.. Koh. Koh But that doesn t mean warned I about narrow was arguments the parsing leading I ve of and been dictionary most don t think he is right in definitions vocal making academic since so as critic to avoid of his bottom line unduly hampering presidential future unilateralism conclusion. presidents. in war. depends upon where you sit.

125 OLC Argument Legal Memo for AG (April 1, 2011) [T]he anticipated operations here [Libya] served a limited mission and did not aim at the conquest or occupation of territory.

126 OLC Argument Legal Memo for AG (April 1, 2011) [T]he anticipated operations here served a limited mission and did not aim at the conquest or occupation of territory. When I first read this I thought perhaps it was an APRIL FOOLS joke!

127 OLC Argument Legal Memo for AG (April 1, 2011) The War Power [T]he anticipated operations here served a limited Resolution mission was and a did not aim response at the conquest to the Vietnam or occupation of territory. When War. I first read this I thought perhaps it was an APRIL FOOLS joke!

128 We OLC didn t Argument aim at the conquest or occupation of territory in Vietnam, [T]he anticipated The War Power either! operations here served Resolution a limited mission was a and did not aim response at the conquest to the Vietnam or occupation War. of territory. Legal Memo for AG (April 1, 2011) When I first read this I thought perhaps it was an APRIL FOOLS joke!

129 Questions Does President Obama have a defense to Have U.S. armed forces Does violating anyone doubt the War that sending Predator Powers DOES drones Resolution? IT over REALLY Libyan territory to airspace fire Hellfire or missiles waters forces of a loyal MATTER? to foreign that country s nation, government while falls under the definition of taking part in equipped for combat...? hostilities? been sent into the territory,

130 Does the Questions Does President Obama Constitution trump Have have a U.S. defense armed to forces an inconsistent been sent into the territory, statute? Does violating anyone doubt the War that sending Predator Powers DOES drones Resolution? IT over REALLY Libyan territory to airspace fire Hellfire or missiles waters forces of a loyal MATTER? to foreign that country s nation, government while falls under the definition of taking part in equipped for combat...? hostilities?

131 Does the Questions Does President Obama Constitution trump Have have a U.S. defense armed to forces an inconsistent been sent into the territory, statute? Does violating anyone doubt the War that sending Predator Did drones the Libya over Operation Powers DOES Resolution? Libyan territory to fire Hellfire even arguably IT REALLY missiles conflict airspace or waters forces of a loyal MATTER? to foreign that country s with the nation, government power of while falls under the Congress definition to of declare taking part in equipped for combat...? hostilities? War?

132 Does the Questions Does President Obama Constitution trump Yet, Have have to date, a U.S. defense the Obama armed to forces an inconsistent been sent into the territory, statute? Does administration violating anyone doubt the is War the that sending Predator drones Does over the Libya only Powers presidential DOES Resolution? IT REALLY Libyan territory to administration airspace fire Hellfire Operation or missiles since even waters it arguably forces of a loyal MATTER? to was foreign that enacted country s conflict with over nation, government the power while falls of Nixon s under the veto Congress definition that has to not of declare taking part in asserted equipped the War for Powers combat...? hostilities? War? Resolution is UNCONSTITUTIONAL.

133 Does the President Need a New AUMF for ISIS? My short answer is no.

134 Does the President Need a New AUMF for ISIS? My short answer is no. ISIS is not a sovereign State, and formal Declarations of War (the power given to Congress) were never viewed as appropriate unless there were States on both sides.

135 Does the President Need a New AUMF for ISIS? My short answer is no. ISIS is not a sovereign State, and formal Indeed, Declarations a formal of Declaration War (the of War might play into ISIS power given to Congress) were hands by implying they are never the viewed sovereign as appropriate Islamic State unless States on both sides. they claim to be.

136 The 2001 AUMF Seems Clearly to Cover ISIS [T]he President is authorized 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

137 The 2001 AUMF Seems Clearly Who to Cover ISIS decides? [T]he President is authorized 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

138 The 2001 AUMF Seems Clearly Who Was al Qaeda to Cover ISIS decides? clearly one of [T]he President is authorized to use all necessary and those 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. organizations

139 The 2001 AUMF Seems Clearly Who Was al Qaeda to Cover ISIS decides? clearly one of [T]he President is authorized to use all necessary and those appropriate force against those nations, organizations, or persons he Was determines al Qaeda planned, authorized, committed, or aided the terrorist attacks that occurred of on Iraq September once 11,? 2001, or harbored such organizations part of or persons, al in order to prevent any future acts of international terrorism against the United States Qaeda by such nations, organizations or persons. organizations?

140 UNSC Resolution 2170 (2014) The 2001 AUMF Seems Clearly Who Was al Qaeda to Cover ISIS decides? clearly one of Reiterating its condemnation of ISIL, ANF and all other individuals, groups, undertakings and entities associated [T]he President with Al-Qaida is authorized for ongoing to use all and necessary multiple criminal and those appropriate terrorist acts force aimed against at causing those the nations, deaths of civilians organizations, and other or victims, persons destruction he Was determines al of property Qaeda and organization By planned, what authorized, logic committed, does AQI of cultural and religious sites, and greatly or aided undermining the. terrorist attacks that occurred of on Iraq September once 11, immunize? itself by 2001, or harbored such organizations part of or persons, al order to prevent any future acts of international 18. becoming Observes that more ISIL violent is a splinter terrorism against the United States Qaeda by such group nations, of organizations Al-Qaida, or.. persons... The UNSC has repeatedly declared that ISIS is a splinter group of al Qaeda. and changing its name??

141 The 2001 AUMF Seems Clearly Who Was al Qaeda Who to Cover ISIS decides? clearly one of decides? [T]he President is authorized to use all necessary and those appropriate force against those nations, organizations, or persons he determines By planned, what authorized, logic committed, does Was AQI al Qaeda or aided the terrorist attacks that occurred of on Iraq September once 11, immunize? itself by 2001, or harbored such organizations part of or persons, al becoming order to prevent more any future violent acts of international terrorism against the United States Qaeda by such nations, organizations or persons. organization and changing its name??

142 The 2001 AUMF Seems Clearly Who Was al Qaeda Who to Cover ISIS decides? clearly one of decides? [T]he President is authorized to use all necessary and those appropriate force against those [T]he nations, President is organizations, or persons he Was determines authorized al Qaeda to use all By planned, what authorized, logic committed, does necessary AQI or aided and the terrorist attacks that occurred of appropriate on Iraq September once force 11, immunize? itself by against those nations, 2001, or harbored such organizations organizations, part of or persons, al or becoming order to prevent more any future violent acts of international persons he terrorism against the United States Qaeda by such nations, organizations or persons. determines organization and changing its name?? planned, authorized, committed, or aided the terrorist attacks....

143 The 2001 AUMF Seems Clearly Who Was al Qaeda to Cover ISIS decides? clearly one of The UNSC has repeatedly [T]he President is authorized to use all necessary and those appropriate force against those nations, organizations, or persons he Was determines al Qaeda planned, authorized, committed, or aided the terrorist attacks that occurred of on Iraq September once 11,? 2001, or harbored such organizations part of or persons, al in order to prevent any future acts of international terrorism against the United States Qaeda by such nations, organizations or persons. declared that ISIS is a splinter group of al Qaeda. organization?

144 UNSC Resolution 2170 (2014) The 2001 AUMF Seems Clearly Who Was al Qaeda to Cover ISIS decides? clearly one of Reiterating its condemnation of ISIL, ANF and all other individuals, groups, undertakings and entities associated [T]he President with Al-Qaida is authorized for ongoing to use all and necessary multiple criminal and those appropriate terrorist acts force aimed against at causing those the nations, deaths of civilians organizations, and other or victims, persons destruction he Was determines al of property Qaeda and of organization cultural planned, and authorized, religious sites, committed, and greatly or aided undermining the. terrorist attacks that occurred of on Iraq September once 11,? 2001, or harbored such organizations part of or persons, al in order to prevent any future acts of international 18. Observes that ISIL is a splinter terrorism against the United States Qaeda by such group nations, of organizations Al-Qaida, or.. persons... The UNSC has repeatedly declared that ISIS is a splinter group of al Qaeda.?

145 The 2001 AUMF Seems Clearly Who Was al Qaeda Who to Cover ISIS decides? clearly one of decides? So, while I think there could be great political benefits by having Congress announce it was standing united behind the President: [T]he President is authorized to use all necessary and those appropriate force against those [T]he nations, President is organizations, or persons he Was determines authorized al Qaeda to use all organization By planned, what authorized, logic committed, does necessary AQI or aided and the terrorist attacks that occurred of appropriate on Iraq September once force 11, immunize? itself by against those nations, 2001, or harbored such organizations organizations, part of or persons, al or becoming order to prevent more any future violent acts of international persons he terrorism against the United States Qaeda by such nations, organizations or persons. determines and changing its name?? planned, authorized, committed, or aided the terrorist attacks....

146 The 2001 AUMF Seems Clearly Who Was al Qaeda Who to Cover ISIS decides? clearly one of decides? So, while I think there could be great political benefits by having Congress announce it was standing united behind the President: [T]he President is authorized to use all necessary and those appropriate force against those [T]he nations, President is 1. I don t organizations, think that is even or persons arguably he Was determines authorized al Qaeda to use all constitutionally organization By planned, what necessary; authorized, logic committed, does necessary AQI or aided and the terrorist attacks that occurred of appropriate on Iraq September once force 11, immunize? itself by against those nations, 2001, or harbored such organizations organizations, part of or persons, al or becoming order to prevent more any future violent acts of international persons he terrorism against the United States Qaeda by such nations, organizations or persons. determines and changing its name?? planned, authorized, committed, or aided the terrorist attacks....

147 The 2001 AUMF Seems Clearly Who Was al Qaeda Who to Cover ISIS decides? clearly one of decides? So, while I think there could be great political benefits by having Congress announce it was standing united behind the President: [T]he President is authorized to use all necessary and those appropriate force against those [T]he nations, President is 1.I don t think organizations, that is even or persons arguably he Was determines authorized al Qaeda to use all constitutionally organization By planned, what necessary; authorized, logic committed, does necessary AQI or aided and the 2.Sadly, I terrorist don t think attacks it is that likely occurred to happen of appropriate on Iraq September once force 11, politically. immunize? itself by against those nations, 2001, or harbored such organizations organizations, part of or persons, al or becoming order to prevent more any future violent acts of international persons he terrorism against the United States Qaeda by such nations, organizations or persons. determines and changing its name?? planned, authorized, committed, or aided the terrorist attacks....

148 What About Last Week s SLCM Attacks on Syria?

149 What About Last Week s SLCM Attacks on Syria? FYI In 1976 I played a role in getting Congress to fund the first Sea-Launched Cruise Missile (SLCM), which was made possible by a small engine developed by Sam Williams (of Williams International). Sam was a constituent of my boss, Senator Bob Griffin.

150 What About Last Week s SLCM Attacks on Syria? Did Professor Moore discuss this attack last Wednesday?

151 What About Last Week s SLCM Attacks on Syria? Did Professor Moore discuss this attack last Wednesday? As a constitutional war powers issue, it comes under the category of force short of war and does not involve the congressional power to declare war.

152 What About Last Week s SLCM Attacks on Syria? Did Professor Moore discuss this attack last Wednesday? As a constitutional war powers issue, it comes under the category of force short of war and does not involve the congressional power to declare war. Under International Law, the best case is Humanitarian Intervention. (Indeed, it is a good opportunity to declare America s support for HI.)

153 Senate Majority Leader Now, George back to the Mitchell (1988) Although portrayed as an effort to fulfill not to alter, amend War or adjust the Powers intent of the framers of the U.S. Constitution, the War Powers Resolution actually expands.... Congress authority beyond the power to declare war to the power to limit troop deployment in situations short of war. By enabling Congress to require by its own inaction the withdrawal of troops from a situation of hostilities, the resolution unduly restricts the authority granted by the Constitution to the President as Commander in Chief.

154 Senate Majority Leader George Mitchell (1988) Although portrayed as an effort to fulfill not to alter, amend or adjust the intent of the framers of the U.S. Constitution, the War Powers Resolution actually expands Congress authority beyond the power to declare war to the power to limit troop deployment in situations short of war. By enabling Congress to require by its own inaction the withdrawal of troops from a situation of hostilities, the resolution unduly restricts the authority granted by the Constitution to the President as Commander in Chief.

155 Senate Majority Leader George Mitchell (1988) [T]he War Powers resolution does not work, because it oversteps the constitutional bounds on Congress power to control the Armed Forces in situations short of war and because it potentially undermines our ability to effectively defend our national interests. The War Powers Resolution therefore threatens not only the delicate balance of power established by the Constitution. It potentially undermines America s ability to effectively defend our national security. Congressional Record, 19 May, 1988.

156 Senate Majority Leader George Mitchell (1988) I could not [T]he War Powers resolution does not work, because it oversteps the constitutional bounds on Congress power to control the Armed Forces in situations short of war and because have it potentially said undermines our ability to effectively defend our national interests. that better. The War Powers Resolution therefore threatens not only the delicate balance of power established by the Constitution. It potentially undermines America s ability to effectively defend our national security. Congressional Record, 19 May, 1988.

157 National War Powers Commission In July 2008 the bipartisan National War Powers Commission unanimously concluded the War Powers Resolution is UNCONSTITUTIONAL and should be REPEALED.

158 National War Powers Commission But unless and until the Administration acknowledges the War Powers Resolution is In July 2008 the bipartisan National War Powers Commission unanimously unconstitutional concluded and the thus War Powers void, Resolution they clearly is UNCONSTITUTIONAL violated that law. and should be REPEALED.

159 Senator Arthur Vandenberg Feb. 10, 1949 It will be a sad hour for the Republic if we ever desert the fundamental concept that politics shall stop at the water s edge. It will be a triumphant day for those who would divide and conquer us if we abandon the quest for a united voice when America demands peace with honor in the world. In my view nothing has happened to absolve either Democrats or Republicans from continuing to put their country first. Those who don t will serve neither their party nor themselves.

160 More than 40 years ago... The day after Jimmy Carter won the 1976 election, I wrote a memo to my boss, Asst. Senate Minority Leader Robert P. Griffin (R. Mich) the original is on the wall in my office.

161 Memorandum for Senator Griffin 3 Nov The voters have selected Jimmy Carter. He was neither your choice nor mine, but he is all we are going to have for the next four years..... So long as Carter s policies are reasonable -- even though they might not conform to our own views on how best to get the job done -- I think you should try hard to restore the Vandenberg tradition. (The fact that the Democrats didn t is no excuse for our not trying.) If you want to try to restore bipartisan cooperation, would you like for me to draft some remarks along those lines for possible delivery early in the new session?

162 Memorandum for Senator Griffin 3 Nov The voters have selected Jimmy Carter. He was neither your choice nor mine, but he is all we are going to have for the next four years..... So long as Carter s policies are reasonable -- even though they might not conform to our own views on how best to get the job done -- I think you should try hard to restore the Vandenberg tradition. (The fact that the Democrats didn t is no excuse for our not trying.) If you want to try to restore bipartisan cooperation, would you like for me to draft some remarks along those lines for possible delivery early in the new session?

163 Conclusions Sen. George Mitchell was correct in 1988 when he observed that the War Powers Resolution unduly restricts the authority granted by the Constitution to the President as Commander in Chief. Sadly in the guise of asserting that the President must obey the law the WPR has usurped presidential constitutional power. It has also been used as a political tool by both parties to mislead the public, undermine our security, and place our forces at unnecessary risk.

164 It probably contributed at least indirectly to the 9/11 attacks by persuading bin Laden we would fold our tents if hit hard. Conclusions

165 Conclusions Neither Korea nor Vietnam were presidential wars initiated against the will of Congress. The WPR would not have stopped Vietnam, which was specifically authorized by statute as permitted by 2(c)(3). For nearly 25 years, Dr. Lou Fisher and I debated whether the War Powers Resolution should be repealed. Writing in Political Science Quarterly in 1998, Dr. Fisher finally came out for the repeal of the War Powers Resolution.

166 Conclusions That would in my view be a great step in the right direction.