Senator Rand Paul recently introduced a resolution that would soon repeal the current authorizations being used to attack the Islamic State in Iraq and Syria (the 2001 and 2002 Authorizations for the Use of Military Force), declare war on the militant group, and authorize a limited range of military actions to continue against them. The idea of a declaration of war is getting the most attention, since it would be the first time the U.S. has done it since June 1942 (the last countries to feel the full wrath of the U.S. Congress were Bulgaria, Hungary, and Romania).
But former Bush-administration lawyer Jack Goldsmith argues that there’s almost no legal substance attached to a declaration of war now as opposed to an authorization for the use of force:
Whatever role declared wars served under international law in the 1780s, and whatever the original understanding of the Declare War clause might have been, international law has changed quite a lot. Since World War II, “war” has generally been replaced with concepts like “use of force (in the U.N. Charter) and “armed conflict” (in the Geneva Conventions). In the modern world. it is not clear what if any purpose might be served under international law by a war declaration, and that is perhaps why there have been few if any war declarations in any the hundreds of wars since World War II.
Goldsmith suggests that Paul’s declare-war idea could spur discussion among the public about the seriousness of the fight against the Islamic State. There’s also a more superficial way to read this: Many Rand supporters think that a lot of U.S. military interventions since WWII have been performed without proper authorization, and may think the lack of formal declarations of war has something to do with that. But it takes the same number of votes to declare war in Congress as it does to authorize force. The invasions of Iraq and Afghanistan weren’t executive abuses but initiatives with overwhelming congressional support. In 2001 and 2002, Congress only had to vote to “authorize force” rather than “declare war,” but it’s hard to see how that lexical difference really makes the vote much tougher to take or defend.
Goldsmith notes authorizations of force have always been the substance of starting a war; in fact, a declaration of war actually does not by itself authorize the use of force. The new substance in Senator Paul’s resolution, then, is not the declaration of war but the much narrower scope it provides for the U.S.’s use of force against the Islamic State and other enemies in the Middle East. Goldsmith writes:
In addition to declaring war against the Islamic State in Section 2(a), Senator Paul also proposes in Section 2(b): “The President is hereby authorized and directed to use the Armed Forces of the United States to protect the people and facilities of the United States in Iraq and Syria against the threats posed thereto by” the Islamic State. This is a narrow authorization of force. Among other things, it authorizes force only in Iraq and Syria and, if I am reading “threats poised thereto” correctly, it does not authorize the President to use force against the Islamic State to protect threats to the American homeland. I am not sure why Senator Paul would want to limit the President’s authorized force to address threats posed to American people and facilities in Iraq and Syria and not to the homeland, and I am not sure whether it matters since the President always has Article II. But the juxtaposition between the full-throated declaration of war in Section 2(a) of Paul’s draft and the very narrow authorization of force in Section 2(b) is strange, and has no precursor in the five earlier declared wars.
One issue, of course, is that Senator Paul doesn’t seem to have a very expansive view of a president’s Article II authority to prevent attacks on the homeland — which Presidents Clinton, Bush, and Obama all do. Combine that with rescinding authority to use force in Iraq except to fight the Islamic State (the 2002 military-force authorization) and ending our authority to pursue al-Qaeda-related entities (the 2001 authorization) in a year, and the president’s authority to conduct the War on Terror will be dramatically curtailed.
Without the 2001 authorization of force, the president won’t have the authority to go after al-Qaeda in Iraq, Afghanistan, or anywhere else, unless he wants to use a very expansive sense of the Constitution’s authority to protect the homeland from imminent threat. Presidents have often done just that, but President Paul presumably would not — which makes you wonder just how much of the war on terror he wants to fight.