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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.

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.