The Future of the Authorization of the Use of Force

This post earned an honorable mention in the Center for International Policy's Rethinking National Security blog contest. It will discuss the authorization of the use  of U.S. force beyond our nation's borders. While this issue doesn't often explicitly grab headlines, it is at the heart of many power struggles, political debates, and legal battles in Washington.

The U.S. Constitution first established a balance of power in this area. Art. I, Sec. 8 states, “The Congress shall have Power... To declare War...” This statement is supplemented with the later statement in Art. II, Sec. 2 that, “The President shall be Commander in Chief of the Army and Navy of the United States...” which is supported by the president’s authority to take care that the laws of the United States are faithfully executed. These lines are where power struggles between Congress and the President originate over the authority to use military force. It is clear that at a minimum the majority of the Constitutional Framers wanted to ensure that no individual could bring the United States to war.

However, history and circumstance have given a broad mandate of power with respect to foreign relations to the president; Congress began to become powerless in the realm of the external use of US force. During the Vietnam War public opinion ran against the foreign affairs preferences of the executive. This led to Congress passing the War Powers Resolution in 1973. This legislation requires the president to “consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” Moreover, the president must notify Congress with the details of military action within 48 hours of the commencement of hostilities. Hostilities cannot last longer than sixty days without express consent of Congress, with a possible extension of thirty more days. The intent of this legislation was to require Congressional approval to military actions abroad where large numbers of American forces are in harm’s way.

This background shows a historical movement away from the formally declared ‘perfect wars’ of the past between states which existed in a dichotomous paradigm of foreign relations: war or peace. The reality of modern warfare is now moving toward a more subtle paradigm, which doesn’t fit neatly into categories of war or peace, but instead creates a continuum from total war to total peace, and which often involves non-state actors. The most recent large-scale U.S. military actions have been executed pursuant to specific enabling Authorizations for the Use of Military Force (AUMFs). However, many smaller actions have no explicit Congressional authorization. For example, the American involvement in the N.A.T.O.-led military intervention in Libya in 2011 did not result from any Congressional action. Legitimate arguments have been made regarding not only the Constitutionality of such an action, but also the wisdom of the unilateral authorization of the use of force abroad by one branch of the government.

This modern patchwork approach of legislation, utilizing the War Powers Resolution, various Court holdings, and AUMFs, does not offer predictable guidelines for any of the branches of government for creating policy, determining action possibilities, or judging either policy or action. At present the use of force is no longer a property of war but a tool of foreign policy. And in the post-9/11 environment of a desperate need for security, the executive branch has been given all the power it could desire in the realm of military action and national security.

As the present AUMFs fade into history, America continues to face challenges. Questions of the use drones, the use of force toward new terrorist organizations, humanitarian interventions in conflicts such as the one present in Syria, and resource protection in the face of global climate change will dominate the future of U.S. foreign policy and military action. All of these instances undoubtedly include the use of force, but fall short of formally declared war. However, the grand structures of law—the U.S. Constitution, The Hague Conventions, and the UN Charter—continue to only recognize the black and white dichotomy between war and non-war which has not been relevant since WWII. The problem that has needed to be solved for almost fifty years now is that there needs to be a comprehensive overhaul of how we use force beyond our borders. These challenges would be best addressed by a uniform and informed national security policy. Such a uniform policy must be created to maintain citizen oversight over governmental action while continuing to protect our nation from the evolving threats of the future.

A categorical policy of the use of force should include measurable variables such as: theatre, resources, time, possible ‘collateral damage’, and mission. Different stages of force application would have different requirements within each category—with perhaps ‘war’ having the most flexible standards. While writing a law is above my job description and pay grade as a law student, the lowest category  could be something like this: Category I: 1 country involved (must go to Congress to expand), no more than 1,000 US troops mobilized or $100 million used, completed within 3 months, no congressional advice or consent required to begin. As I have no military experience I fully recognize that these numeric limitations may have little bearing on reality, but I’m merely trying to illustrate the concept. The last category would just be war, where a full Congressional vote is needed. The WPR has a similar idea, but has too few options and is wholly too vague. At times law must be vague to allow flexibility, but I feel the past fifty years of foreign relations shows that flexibility has become too great to allow for predictability or constitutionally required consent of both branches.

While of course this is possibly unconstitutional, the Constitution specifically erects shared powers of war and war making. This is merely updating that sharing. In this context it remains important to understand the values and reasoning behind our Constitutional system: the president must have the ability to act quickly when needed, and Congress must agree to large-scale actions on behalf of the American people and to consent to the use of their money. Unfortunately law and policy change like a punctuated equilibrium—with very few punctuations. Moreover, Americans are generally afraid of drastic policy change, and thus won’t demand wholesale reform in these areas. This is partly why the Constitution has been amended so few times. However, this is a deeply important issue in both constitutional law and national security policy. It is my hope that the conversation on this topic continues to evolve.