Senate May End Constitution-Defying 'Authorizations to Use Military Force'

P. Gardner Goldsmith | March 6, 2023
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Leave it to pop media to perform two-fers when it comes to perpetuating lies about the U.S. government.

In a March 1 headline reading “US Senate moves toward ending 'forever war' authorizations,” the message-massagers at Reuters not only invited readers to think that the US Senate might be considering a bill to prohibit Congress from passing legislation allowing any future open-ended military ops (rather than what is actually happening: the possible revocation of two previous “Authorizations to Use Military Force”), but Reuters also perpetuates the myth that the term “Authorization to Use Military Force” is actually in the U.S. Constitution.

According to reporter Patricia Zengerle:

“A U.S. Senate committee will consider legislation next week that would repeal two authorizations for past wars in Iraq, Majority Leader Chuck Schumer said on Wednesday, in a renewed push to reassert Congress' role in deciding to send troops into combat.”

Of course, the use of the term “wars” is both incorrect and misleading.

As I reported for the Mises Institute in 2007, the George W. Bush Administration and its willing accomplices in Congress spat a stunning insult at Americans, the Founders, and people worldwide when, in 2002, Bush sent a functionary to Congress to specifically ask members not to abide by the Constitution:

“…then-White House Counsel Alberto Gonzales approached Congress and asked the representatives to do something not allowed under the US Constitution. He asked them to grant the President the power to use the military without a formal Declaration of War. Such a declaration is the only power granted to Congress to facilitate the President's use of the U.S. military. Instead, the Bush Administration wanted Congress to grant him a "resolution for the use of military force," which seems an awfully cumbersome term when one could just, well, declare war.”

We’ll return to this facet of the story in a moment.

Related: Poll: 55% Say Supreme Court Should 'Interpret' Constitution to Modern Meanings, Not Original Intent | MRCTV

Adds Zengerle:

“The Senate Foreign Relations Committee will take up the 1991 and 2002 Authorizations for the Use of Military Force, or AUMFs, Schumer said, paving the way for a possible vote in the full Senate before members leave for the April recess, Schumer said.”

So, not only is this NOT a debate about preventing any future unconstitutional AUMF calumnies, it perpetuates the lie that an AUMF is, somehow, permitted by the U.S. Constitution in the first place.

The Constitution is clear, and it is clear for a very important reason.

Congress must Declare War in order for the President to lead U.S. troops into combat outside the United States. Both the “D” and the “W” are capitalized because the Founders knew the term “Declaration of War” to be very specific. It was a nation-versus-nation, state-on-state operation that excluded civilians and was supposed to operate under certain norms: such as not killing women and children and not torturing captured soldiers.

Which brings us back to the unforgiveable actions of the Bush Administration and the Congress of that time (many members of which still eat our tax cash in their seats of the House and Senate). As I noted in 2007:

“The reason Gonzales and the Bush Administration did not want a formal declaration was obvious: the United States government is a signatory to the Geneva Accords. According to the treaty, which is easily found by utilizing a simple web search, all uniformed and non-uniformed enemies captured during wartime in any signatory state (Iraq and Afghanistan are both signatory) would have to be treated according to Common Article Three of the Accords. This insures certain standards of behavior for those holding prisoners of war, prohibiting torture, and insuring that all signatory nations will afford humane treatment of their POWs.”

Readers might want to print copies of this and hand it to their congressional delegation.

“According to US law prior to 2006, if the individuals captured on the battlefield in this undeclared ‘war on terror’ were not going to be treated as POWs, then they would have to be tried under US criminal code, just like other terrorists in the past. This, of course, would require the courts to provide habeas corpus hearings to the arrested parties, unless Congress utilized its constitutional power to broadly suspend the Writ of Habeas Corpus for all Americans and those being tried under US law.[2]

And where did they put the prisoners? Guantanamo Bay, where, many of the Bush, Obama, and other White House officials and Congress members argued, the US could indefinitely detain and “interrogate” people without acknowledging U.S. law or the Geneva Accords.

So, what we see in this Reuters “report” is much, much bigger, and much more important than the headline portrays it to be.

If the Senate is willing to “end” these “authorizations” without acknowledging that they were never allowed by their Constitution in the first place, how can they, with any honesty, claim that the Constitution sanctions their paychecks and offices, staff members, travel expenses, and all the other things we are forced to fund? If they can overlook their oath when it comes to the central point of the Declaration of War, why can’t we overlook the Constitution and tell them to buzz off?

In fact, it’s even more fundamental than that. Unless we work for government or are in the military, most of us have not agreed to the Constitution at all. It’s an abstract set of rules to which the people entering the offices swear they will abide.

With this news coming from the Senate, it’s clear that they have not.

Related: 'The Individual v. Big Gov't' Pt. 2: Understanding The Importance of Decentralization | MRCTV