The Feehery Theory

Congress Should Be Careful on ISIS Authorization

Posted on September 10, 2014

At The Hague Convention of 1907, the British, Germans, French, Russians, Americans and other world powers met to try to figure out how the major powers should act in the 20^th century.

One of the breakthroughs was an agreed-upon procedure to declare war on one another, which of course, would come in handy during the bulk of the 20^th century, where there were plenty of wars going on.

Here are the two major provisions of that treaty, according to Wikipedia:

Article 1

The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war.

Article 2

The existence of a state of war must be notified to the neutral Powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph. Neutral Powers, nevertheless, cannot rely on the absence of notification if it is clearly established that they were in fact aware of the existence of a state of war.

If you ever watch the movie, Tora, Tora, Tora, about the Japanese attack on Pearl Harbor, you might wonder why Japan’s diplomats were busy, scurrying around, trying to get their declaration of war into the hands of the Americans a split-second before the bombs started dropping.

I guess they want to follow international law as outlined in the 1907 Hague Convention.

In America, Congress has the power to declare war, while the President has the power to wage war.

If that sounds a bit confusing, that’s because it is a bit confusing.   And it has confused Presidents and the Congress for a couple hundred years.

These days, Presidents don’t ask Congress to declare war.  They ask them for resolutions authorizing military action, but the whole declaration of war thing is a relic of the 1940’s.

Three days after the September 11^th attacks, the Congress passed an Authorization to Use Military Force against the Terrorists.

This was aimed specifically at the folks who had a hand in planning the 9/11 attacks.

This is not to be confused with the 2002 resolution against Saddam Hussein.

The resolution against the terrorists got 1 no vote, while the authorization to take out Saddam Hussein got 123.

In 1964, Congress passed the Gulf of Tonkin resolution, which gave President Johnson carte-blanche to go in an spend the next decade fighting the communists in Vietnam.  As we all know,  that didn’t go that well.

In 1950, it was the UN Security Council and not the United States Congress, that passed a resolution condemning the Communist invasion of Korea.  Congress followed up by appropriating an initial 5 billion dollars to pay for our military response.

When I first started working in Congress for Republican Leader Bob Michel, he was involved in passing the Persian Gulf Resolution that authorized President George H.W. Bush to use the military to remove Saddam Hussein from Kuwait.

Bush didn’t ask for the resolution, but Congress insisted that it had a voice in war-making, and it narrowly gave the President permission to extricate the Iraqi dictator from his tiny neighbor.

What that resolution didn’t authorize was the removal of Hussein from power or any movements to conquer and resettle the entire country.  That was one reason why Bush left Hussein in power.  Another reason was that he wanted a strong counter-weight to Iran and Hussein provided that stability, despite the fact that he was a really bad guy.

The War Powers Act was enacted into law over the veto of President Nixon, and it has been roundly disliked by every President since that veto.

Here is what Wikipedia has to say about it:

The War Powers Resolution requires the President to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war. The resolution was passed by two-thirds of Congress, overriding a presidential veto. It has been alleged that the War Powers Resolution has been violated in the past, for example, by President Clinton in 1999, during the bombing campaign in Kosovo. Congress has disapproved all such incidents, but none has resulted in any successful legal actions being taken against the president for alleged violations.

President Obama has had a basic strategy when it comes to war and the Congress.

When he really doesn’t want to engage the U.S. in an operation, he asks the Congress to authorize force.  He didn’t really want to go into Syria, so he asked Congress for permission to do so, and when they said no, he didn’t do anything to the Assad regime.

When his military folks want him to engage, he just does it.  That happened in Libya and it is happening now with ISIS.

Some members of Congress have said that they want to give the President explicit authority to engage ISIS (or ISL as Mr. Obama calls them).

I would caution against that.

It seems that every time Congress passes an explicit war authorization, we get involved in a pretty big war.

Every time the President just kind of does it on his own authority, the engagement tends to be much more limited, much less costly and much less bloody.

For example, Bill Clinton bombed Kosovo to extricate the Serbians from the region.  He did it without Congressional authority.  In fact, many Republicans believed that the President was doing this whole thing to distract attention from his pending impeachment trial.

But as it turned out, the bombing campaign didn’t last very long and achieved its objectives, all without having us engage in a wider war.

When Congress gave President Bush authority to attack Iraq, we bit off a lot more than we could chew as a country.

Sometimes the best check on the President’s power is when Congress lets the President use his own authority to protect America from the bad guys.  When Congress gives its express approval, there seems to no check on the President’s war-making ability.