Posted on March 31,
2021
AUMF Repeal Is FUBAR
Congress cannot un-declare war
by
Daniel
Clark
In an action that can only be understood to be a
parody of its own inanity, Congress has decided to un-declare a war that the
United States and its allies have already won.
Led by Democrat senator and former vice presidential candidate Tim Kaine, large majorities in both houses have voted to end
the 2002 Authorization for Use of Military Force Against Iraq. One may be excused for being unaware that
such an authorization had ever been passed, because one of the many falsehoods
that suffice for "what we know now about Iraq" is that it was an undeclared
war. In fact, there is no substantive
difference between a declaration of war and an AUMF.
Since the start of the Second World War, many laws
involving presidential emergency powers have been written so that they are
enacted when our nation is in a state of declared war or national
emergency. In order to prevent such
powers from taking effect, Congress simply omits the phrase "declare war" from
its authorization, the theory being that until the Supreme Court rules that the
AUMF is a declaration of war (and when would it have occasion to do that?),
they have plausible deniability.
This
is pure semantic silliness. Article I
Section 8 of the Constitution only empowers Congress to declare war, not to
execute it. When Congress declares war,
all it is doing is authorizing the president to use military force against a
particular enemy. To argue that an AUMF
is something other than a declaration of war is about as senseless as saying
that Massachusetts, Pennsylvania, Virginia and Kentucky are not states, just
because they use the word "commonwealth" in their state constitutions.
The congressional power to declare war begins and ends
with the words "to declare war." The
Constitution does not empower Congress to end a military deployment, nor to set
parameters within which the war must be fought.
It doesn't even say that a declaration is necessary to go to war. There's an argument to be had, for example,
that declaring war on Japan was unnecessary, once that nation was already at
war with us. Congressional war powers,
compared to those of the president, are extremely limited by design. By taking a symbolic vote that can't help but
demonstrate this, Kaine and company are merely
flexing their legislative beer muscles.
The repeal resolution does not question the many
justifications for the invasion of Iraq that were enumerated in the 2002
AUMF. It does not attempt to undo any
part of the war, or to withdraw the soldiers who remain there in its
aftermath. To the contrary, it
acknowledges that its passage and signing would have no real-world effect
whatsoever. According to the only clause
in the bill that attempts to explain its purpose, "Whereas authorizations for
the use of military force that are no longer necessary should have a clear
political and legal ending: Now, therefore, be it Resolved by the Senate and
House of Representatives of the United States of America in Congress assembled,
The Authorization for Use of Military Force Against Iraq Resolution is hereby
repealed."
This
amounts to little more than recycled Clinton-era psychobabble about needing
"closure." Moreover, it's based on an
incorrect premise. An authorization for
the use of military force already has a clear political and legal ending. It's called the start of the war. Once the president acts, the authorization
has served its purpose. The end of a
war, on the other hand, is not always clearly demarcated. The original purpose of the invasion was to
depose Saddam Hussein, but once he and his sons had been killed, our soldiers
came under attack from al-Qaeda in Iraq forces populated with Saddam's former
officers, so the war could not truly be said to be over. In time, our forces routed AQI, but in the
absence of a formal surrender, there was no moment that we may pinpoint as
Victory in Iraq Day. Not that Congress
means to declare victory anyway. Like
our past two presidents, they seek to "end" the war without ever acknowledging
its outcome.
So, to summarize: In order to make a hollow rhetorical
point in opposition to "forever wars," Congress is brandishing its power to
declare war by repealing its authorization of a war that's over and cannot be
undone, all the while denying that this authorization is a declaration of war --
a denial which, if true, would render the act unconstitutional.
... And you probably thought they weren't taking their
work seriously enough.
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Frontier of the Free Press