A “Secret” Constitutional Crisis Over The Power To Declare War?

With all the talk of “scandals” in recent weeks, one very real Constitutional crisis appears to have escaped the attention of the mainstream press. This issue is whether the military already has the authorization it needs to wage war anywhere in the world at any time without Congressional approval.  To see the crisis unfold in real time click here for an exchange broadcast by Democracy Now between Senator Lindsay Graham, top ranking members of the military and the Independent Senator from Maine, Angus, King. King’s major point is that the AUMF (Authorization to Use Military Force – see copy re-printed below) is confined to taking action against the those who aided the 9/11 attackers. Senator Graham and the military apparently read the AUMF to mean that Congress authorized the use of force against anyone, anywhere who shares the views of the 9/11 plotters, attackers and enablers regardless of whether they were in anyway involved with 9/11. . Do you think that is a fair reading of the AUMF?

The understand the issue it helpful to bear in mind that Article 1, Section 8, Clause 11 of the Constitution provides that “Congress shall have the power:

11.  To declare war, grant letters of marque and reprisal, and make rules concerning captures on on land and water.

Apparently the military, with Senator Graham’s strong support, is of the opinion that a document referred to the AUMF passed by Congress shortly after 9/11, has granted the President the power to wage war anywhere in the world at any time without further involvement by the Congress.  Senator King argued forcefully that the AUMF does not grant the power to wage war that top leaders of the military and Senator Graham believe that it does.  What do you think?  With the Memorial Day weekend coming up, if you find yourself in a discussion about the IRS, Benghazi or the AP (and now Fox News) story, you might consider saying to your fellow conversationalists, “Yes, but have you heard of the brewing Constitutional crisis?”  And then go on to explain, as lawyers should do from time to time, the separation of powers under the Constitution, the particularly important power to declare war and the consequences of separating the power to wage war from the democratic process. Below, cut and pasted from Wikipedia, is a copy of the AUMF.

Preamble [edit]

Joint Resolution

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and
Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

Section 1 – Short Title [edit]

This joint resolution may be cited as the ‘Authorization for Use of Military Force’.

Section 2 – Authorization For Use of United States Armed Forces [edit]

(a) IN GENERAL- That the 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.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supersedes any requirement of the War Powers Resolution.