I just completed a two-city debate with former Bush official John Yoo on executive power with a focus on undeclared wars. It appears Yoo won the debate . . . at least with President Obama. Indeed, Yoo appears to have had Obama at “hello” to quote Jerry Maguire. Without any declaration of war, Obama has launched attacks against targets in Syria — an act of war by any measure and a violation of international law.
We have been discussing the growing concerns over President Barack Obama’s series of unilateral actions in ordering agencies not to enforce law, effectively rewriting laws, and moving hundreds of millions of dollars from appropriated purposes to areas of his choosing. One of the greatest concerns has been his unchecked authority asserted in the national security area.
The most serious acts of unilateral presidential action falls within war powers — powers that the Framers expressly and carefully limited to prevent precisely this type of attack. Of course, the Administration does not use the word “war.” I previously represented members of Congress in challenging Obama’s intervention in the Libyan civil war without a declaration from Congress. In the case, President Obama insisted that he alone determines what is a war and therefore when he needs a declaration. Since the court would not recognize standing to challenge the war, it left Obama free to engage in war operations in any country of his choosing.
The White House insisted that this was “military action” but that “[g]iven that these operations are ongoing, we are not in a position to provide additional details at this time. The decision to conduct theses strikes was made earlier today by the U.S. Central Command commander under authorization granted him by the commander in chief.”
The Administration is now calling this a “sustained campaign” with no estimate on how long it will take. So we are again attacking another nation without a declaration or even a debate in Congress. Members are allowed to avoid their constitutional duties of clearly declaring a war while the President has been allowed, again, to jettison any limitations on his ability to wage war.
It is one thing to take out our own captured Humvees (with missiles costing $250,000 a shot) in Iraq with the permission of the country and hitting cities and targets in Syria against the express position of the government. That is clearly an act of war to prosecute a military campaign against the territory of a sovereign nation.
We are continuing an assault on basic principles of international war and returning the word to a state of nature. When another country elects to take our individuals or targets in the United States, what precisely will we claim as authority. We have assumed the role of Roper from “A Man For All Seasons“:
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
Source: ABC News
Except you did not publish what I said.
So, I have tried to say it again but you wont publish it.
I am not asking for you to publish or perish. Or even join a parish. I am asking the readers to explore the other provisions of Art. I, Sec 8 of the Constitution which provides for various things for Congress to authorize, including the use of military force to go after pirates and terrorists or those who violate the Laws of Nations. Is Syria really a complete nation state? If we bomb a terrorist base within the pirate territory referred to on a map as Syria are we really committing an act of war? I don’t think so. And I think that Congress authorized the use of force against terrorists after Nine Eleven. The blog here wont let me cite the Constitution at Art. I, Sec 8. Go google that and go down about ten Clauses. I am not talking Sintur Klaus here.
Dear Mr. Turley,
I am a big fan of yours and the overall blog that you put out. I understand your point … to a point …. However, in a sense, in this modern age, we will never see the likes of a WW II again.
Things move TOOO fast. An ICBM takes approx. 20 minutes from start of launch in the Soviet Union until impact in the USA…. So we will never have a Pearl Harbor type attack again.
What we have are religious fanatics vis-a-vis Nation States conducting foreign policy.
You state that the Syrian attacks are illegal without a Congressional mandate for war… Okay, legally, you are on solid ground but you step into quicksand because again these are not Nation States like Germany and Japan in WW II.
If we had killed Osama bin Laden prior to 9/11 knowing that or at least suspecting that he was about to mastermind four planes killing 3,000 plus people would you feel the same …??? That these pre-emotive strikes might preclude the greater tragedy of 9/11 … Methinks you would …
Therefore, while the President does not have a Congressional mandate, he does have the mandate of his oath of office to protect and defend the Constitution of the US against all enemies foreign and domestic …. Extrapolated, that means he can preemptively strike ISIS before they really get too big for their britches ….
I support the strikes 100% and I believe a majority of Americans do too. They are sick and tired of seeing ISIS on the news nightly carrying out their atrocities.
If Itchy Mitchy McConnel and the rest of his Band of Renown what to scurry from the limelight allegedly to run for reelection then they do not have a leg to criticize the Prez for attacking ISIS.
I just hope the President continues the bombing long enough to seriously eradicate ISIS.
Any “Americans” who go to fight with ISIS should be deemed enemy combatants, their passports revoked, never allowed back into this country, their assets seized and if they do attempt to return jailed interminably
We live in a far different world than 7 Dec 1941 so adjustments like the ISIS bombing have to be made. It took us nearly four years to defeat the Japanese in WW II .. The American people want ISIS Crushed in a far shorter time.
Barkin, The third world Word Press is hungry this morning. Ate a comment of mine on the Egyptians thread.
Word Press says: “Duplicate comment detected! It looks as though you already said that.”
Except you did not publish what I said.
I would hope that Congress and Obama would recognize that there ARE worse people in the world than Assad. This would be a good time to press the other forces who are against Assad to negotiate an alliance with Assad on power sharing, and agree to jointly fight against ISIS which is a FAR worse enemy for both sides. If Assad goes, ISIS will use that vacuum to take over all of Syria and wage war against ALL those who disagree with them, and establish their idea of a pure Islamic state, with mass executions for those who do not follow. I would also think that the non-ISIS forces being armed would give them a power base to ensure that Assad lives up to the agreements. Such a coalition would provide the necessary boots on the ground to finish off ISIS.
Those cowardly Congressmen should get their butts back to DC pronto to do their damn jobs.
I hope it wasn’t a 3AM call. That mofo needs all the beauty sleep he can get.
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repeal Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
This is going to be a dirty war. Lots of black OPS operations.
Someone called Syria’s President Bashar Assad before the bombing. I wonder who called him?
What happened to my comment? If I criticize the author does my comment get mulled over and maybe included?
Write your congressperson. Dropping bombs on a foreign country is an act of war. Our Congress has not passes an act of war. This President (as have numerous others) has violated his oath of office. He is creating more enemies than he can kill and he is doing all without the express authority he needs as written in our Constitution that this president claims to know so much about.
Write your congressperson today!
The Congress wants him to bomb away and tell them about it later. To ignore the Congress’ duplicity is amazing.
Let us have a discussion of all of the Clauses of Article I, Section 8 of the Constitution wherein Congress may authorize actions against foreign nations or foreign pirates or terrorists. I will print them below in a few more sentences.
But for this discussion, so far, the article by JT leaves out the notion that our military in the past month has gone after pirates or terrorists and not a defined nation state itself. It is true that we have bombed terrorists who are located in Syria. I for one do not agree that Syria is a concise, controlled nation state. It is more like Somalia, Nigeria, Afghanistan. Those three countries have similarities. Somalia has a lot of pirates who will leave the village in a boat and go offshore and commit acts of piracy. The land territory is not really controlled by a nation state which calls itself Somalia. In Nigeria we have a similar situation to Somalia where Islamic terrorists control part of Nigeria and the so called government of Nigeria is not capable of taking that territory back. This is where they kidnap children and sell them. In Afghanistan there is a so called national government but the territory is fought over by a variety of terrorists. The locals and the world was better off when the Soviet Union controlled the territory. But now it has terrorists running areas. Syria has similarities to Somalia, Nigeria and Afghanistan. There is a dictator who is a mean guy who fights a civil war and there are many factions. One faction claims to be a nation state into itself– the Islamic State.
Our Framers of our Constitution distinguished between declaring war upon a nation state and authorizing military force to go after pirates or those on land who did not adhere to the Laws of Nations.
In previous post 9/11 Congressional authorizations, Congress gave the President as Commander in Chief the authority to go after terrorists. Some terror organizations were named. Now the terrorists have morphed.
Questions: 1) Do we need a Declaration of War to be issued by Congress under the War Declaration Clause of Article I, Section 8 or do we need an authorization under the Piracy Clause of that Article I, and Section 8?
I think we need to frame the discussion into those two questions.
Here is the partial text of relevant Clauses:
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repeal Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Barkindog, I retrieved two of your comments.
Go for it, Nick. The goal of the military should never be “to win the hearts and minds.” Militaries are good at breaking things and killing people.
Nevertheless, let our Congress decide to unleash the dogs of war. Not the president alone except in case of clear and present danger.
Now this is downright silly. The very first war the US fought after the adoption of our Constitution did not come from a declaration of war. For those who forget our history, they were called the Barbary WARS. So if the very people who WROTE the Constitution had no problem with that, I do not either. Then the allegation it violates international law is also specious since the targets are non-governmental forces who have NO legal standing as a state or member of the UN. Now if the targets had been Assad’s forces THEN it would be a violation of the UN Charter if the UN did not sanction it. The FACT is that Syria has no problem with the strikes, will NOT be going to the UN to protest the strikes, and is welcoming them. Plus the FACT that Congress authorized the funds AND gave sanction to these acts. So just where is the violation?
I also have to laugh at the complaint about Obama giving relief to those who complained about some poorly drafted parts of the ACA. So they complain, they get relief, and then complain he violated the law! GET REAL!
I thought everything changed after 9/11?
TI= Testicular Integrity.
David, silence is consent then? There are those who voted for an anti-war president. Not the change we hoped for. A constitutional lawyer should know what is expected, required, and forbidden therein. You’d think.
The Congress doesn’t have the intestinal fortitude to declare war. They scattered like cockroaches to go to their home districts so they wouldn’t HAVE to discuss it or vote. If there was TRULY an imminent threat to the US, thank goodness Obama has TI.
I wish someone would actually conduct a REAL war where our goal is to defeat the enemy. We haven’t had one of those since WW2. We just stir up the bees nest and bug out. These crazies in the Middle East actually believe they have been winning because we don’t crush them. Time to do some real crushing. A declared war by Congress and no options off the table. This President spends more time telling the enemy what he won’t do than what he will do. A metrosexual CIC.
Congress had plenty of time to say no or yes to this action. It’s not like there was something imminent needing immediate action.