Follow us on social

Screen-shot-2021-06-29-at-11.45.37-am

US airstrikes in Iraq and Syria are blatantly unconstitutional

It will take much more than repealing AUMFs to stop the president from making unilateral decisions to wage war.

Analysis | Global Crises

Last Monday, President Joe Biden ordered unconstitutional airstrikes in Iraq and Syria against two alleged Iranian-sponsored militias that were purportedly implicated in drone attacks on American personnel in Iraq weeks before. The airstrikes were sequels to President Biden’s unconstitutional bombing of Syria in February, killing at least 22. 

Thereby hangs a tale of power corrupting. Biden and absolute power corrupting him absolutely.

Both Syria’s President Bashar Assad and Iraqi Prime Minister Mustafa al-Kadhimi opposed the strikes. The latter condemned them as a “blatant and unacceptable violation of Iraqi sovereignty and national security. 

President Biden’s air strikes constituted acts of aggressive war against Syria and Iraq according to the Rome Statute of the International Criminal Court. Article 8 bis defines the crime of aggressions as including, “Bombardment by the armed forces of a State against territory of another State or the use of any weapons by a State against the territory of another State.”

At a House Armed Services Committee hearing in 2011, Republican Congressman Randy Forbes of Virginia pressed then-Secretary of Defense Robert Gates on the refusal of the Obama administration to call missile strikes against Libya’s Muammar Gaddafi acts of “war.” Forbes asked Gates whether it would be an act of war if another country fired a cruise missile at New York City — as the United States had against Tripoli — and Gates responded, “probably so.”

Under the Declare War Clause (Article I, Section 8, Clause 11)as universally understood by the drafters and ratifiers of the Constitution, only Congress possesses power to authorize the offensive use of the armed forces. The president, however, retains authority to repel sudden attacks by enemies that had already broken the peace. Neither Syria nor Iraq, however, was attacking the United States or personnel of the U.S. armed forces when President Biden launched his air strikes. The president had ample time to ask Congress for declarations of war of their equivalent. 

As a senator seeking the Democratic presidential nomination in 2007, Mr. Biden unreservedly embraced this inarguable Declare War Clause meaning. Indeed, he vowed to lead the charge to impeach and remove President George W. Bush if Iran was attacked without a congressional declaration. The following exchange with Chris Matthews of MSNBC in December, 2007 speaks volumes:

MATTHEWS: You said that if the president of the United States had launched an attack on Iran without congressional approval, it would have been an impeachable offense.

BIDEN: Absolutely.

MATTHEWS: Do you want to review that comment you made? Well, how do you stand on that now?

BIDEN: Yes, I do. I want to stand by that comment I made. The reason I made the comment was as a warning. I don't say those things lightly, Chris. You've known me for a long time. I was chairman of the Judiciary Committee for 17 years, or its ranking member. I teach separation of powers and constitutional law. This is something I know.

So I got together and brought a group of constitutional scholars together to write a piece that I'm going to deliver to the whole United States Senate, pointing out the president has no constitutional authority to take this nation to war against a country of 70 million people, unless we're attacked or unless there is proof that we are about to be attacked.

And if he does, I would move to impeach him. The House obviously has to do that, but I would lead an effort to impeach him.

It is not that President Biden loves the Constitution less by jettisoning his Declare War Clause gospel, but that he covets limitless executive power more.

The Department of Justice has been conspicuously silent about Mr. Biden’s authority to bomb Syria and Iraq without a congressional statutory directive. That silence bespeaks embarrassment at the constitutional indefensibility of President Biden’s aggressions. Instead, Pentagon spokesman John F. Kirby has been deputed to explain the president’s unilateral acts of war.

Experience teaches skepticism of any Pentagon war narrative. The ill-conceived August 1964 Gulf of Tonkin Resolution that begat the Vietnam War disaster was the child of executive branch lies. Not only was there no second North Vietnamese torpedo attack on the Mattox and Turner Joy, but American complicity in prior provocative attacks on North Vietnam (codenamed Operations Plan 34A) was concealed.

Repealing the 2001 and 2002 Authorizations to Use Military Force will accomplish nothing to rein in unconstitutional presidential war powers. President Biden will assert inherent Article II power to initiate war at his choosing as commander in chief or otherwise. That was President Richard Nixon’s response to the repeal of the Gulf of Tonkin Resolution to justify continuation of the Vietnam War.

There are but two fail-safe approaches to terminating presidential wars. A congressional resolution defining them as impeachable high crimes and misdemeanors, see H.Res. 922 (115th Cong.), and H.Res. 411 (116th Cong.); or, a statute making criminal any expenditure of United States funds to support the offensive use of the armed forces without a prior declaration of war by Congress.


Images: Sascha Burkard and Konstantin L via shutterstock.com
Analysis | Global Crises
Jonathan Greenblatt
Top image credit: Anti-Defamation League CEO Jonathan Greenblatt speaks during 2023 National Action Network (NAN) Triumph Awards at Jazz at Lincoln Center in New York on October 16, 2023 (lev radin / Shutterstock.com)

ADL takes on shareholders questioning Israel arms sales

Middle East

The Anti-Defamation League’s mission is to “stop the defamation of the Jewish people and to secure justice and fair treatment for all.”

But over the past year that mission has stretched to include defending some of the world’s biggest weapons companies from shareholder proposals calling for reporting on the human rights impact of their weapons, according to a review of SEC filings, proving itself an important ally for weapons and tech firms seeking to profit from sales of weapons technologies to Israel and avoid accountability for the ways in which their products are used on Palestinians.

keep readingShow less
Capital Washington D.C. Pentagon Department of Defense DOD
Top photo: credit Shutterstock. A 5% hike in US military spending would be absolutely nuts
A 5% hike in US military spending would be absolutely nuts

Report: Pentagon will likely fail audits through 2028

Washington Politics

The Defense Department has not taken adequate measures to address “significant fraud exposure,” and its timeline for fixing “pervasive weaknesses in its finances” is not likely to be met, according to a recently released government report.

The Government Accountability Office conducted the report to assist the Pentagon in meeting its timeline for a clean audit by 2028. DOD has failed every audit since it was legally required to submit to one each year beginning in 2018. In fact, the Pentagon is the only one of 24 federal agencies that has not been able to pass an unmodified financial audit since the Chief Financial Officers Act of 1990.

keep readingShow less
Turkey earthquake
Top photo credit: Hatay Turkey - February, 09,2023 : Aid is distributed to earthquake victims. (Shutterstock)/ BFA-Basin Foto Ajansi)

Americans strongly support basics but are split on other foreign aid

Global Crises

An overwhelming majority of voting-age Americans support providing humanitarian and food aid to developing countries, but they are more divided along partisan lines on other forms of U.S. assistance to nations of the Global South, according to new poll results released by the Pew Research Center.

The findings come as the White House last week released a “skinny budget” that proposed a nearly 48% cut to total foreign aid, including a 40% reduction in humanitarian assistance, for next year and signaled its intent to rescind nearly half the current year’s aid budget appropriated by Congress but not yet spent.

keep readingShow less

LATEST

QIOSK

Newsletter

Subscribe now to our weekly round-up and don't miss a beat with your favorite RS contributors and reporters, as well as staff analysis, opinion, and news promoting a positive, non-partisan vision of U.S. foreign policy.