The US Constitution says that only Congress can declare war for an extended time but there is a workaround.
Congress approved the 2001 Authorization for Use of Military Force (AUMF), giving the president the authority to track down and destroy al-Qaeda and the Taliban. The resolution stipulates 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.”
The resolution’s 2002 version gave President Bush the authority to invade Iraq.
Only 25 percent of the current members of Congress in the House and Senate were present when the current AUMFs were passed.
Sen. Chris Murphy, D-Conn., and several other Democrats are asking whether a new law authorizing the use of military force should be written.
They are planning to introduce legislation that would prohibit Trump from starting a pre-emptive war against North Korea, absent an imminent threat or without express authorization from Congress. They call for one without a sunset date, saying that Congress needs to have a voice.
The deadly incident in Niger last month ignited a push among many members of Congress to update the legal parameters for combat operations overseas. The revelation that the US is at war in Niger, without Congress even knowing, was startling. This is the perfect illustration of the US’s permanent war posture around the world, where battles are waged with little or no public scrutiny and no congressional authorization. All previous attempts to ditch the old authorization and force Congress to craft a new one have failed. For years now, Congress has abdicated its responsibility to debate and vote on US wars.
This time lawmakers mentioned the possibility of using military force in crises involving North Korea, Iran and Venezuela, as well as the ongoing efforts against multiple militant groups that did not exist at the time the AUMF came into force. The AUMF authorized military actions only against al Qaeda, the Taliban and other perpetrators of the Sept. 11 terrorist attacks.
During testimony before the Senate Foreign Relations Committee on October 30, Secretary of State Rex Tillerson and Defense Secretary Jim Mattis opposed the idea of rewriting the legislation in force and told the lawmakers demanding a new war authorization that existing laws governing combat operations are legally sufficient.
The two secretaries explained that the executive branch has the power to launch an attack in certain circumstances where US citizens and national security interests are being imminently threatened. Tillerson and Mattis declined to make precise whether they see North Korea as an imminent threat to be dealt with without congressional approval.
They also said the AUMF should not be repealed until a replacement is in place. The top officials believe that repealing the law prematurely could signal the United States is backing away from the fight against terrorists. They cautioned senators against imposing restrictions on American military forces using force overseas, should Congress decide to write new AUMF legislation, as it would allow the enemy "to seize the initiative."
Tillerson and Mattis told the committee that a new war authorization should not have time constraints or geographic constraints. Their view has strong support. Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn.) appeared to cast doubt on the need to pass a new AUMF as it would “send the wrong message to our allies and our adversaries that we are not united and committed to victory.”
Backers of a new AUMF say the 2001 authorization has let presidents wage war wherever they like, without answering to Congress, or the public. According to them, the current law is used as a pretext for using force abroad against the forces that have no relation to the perpetrators of the 9/11 terrorist attacks. Republican Senator Rand Paul believes that Congress has surrendered its war-making power to the White House. In September, he tried to repeal the current authorization, saying it allowed the president to engage in war "anywhere, anytime, anyplace on the globe". There are disagreements about what a new authorization should look like prevent the repeal of the current AUMF or introduction of a new legislation. It seems unlikely that a new law will be introduced to be considered by Congress - at least not soon.
Meanwhile the AUMF, the open-ended document, is used to justify operations in many countries across the world with neither an exit strategy nor a defined goal. The combat actions are waged in Yemen, Libya, Somalia, Syria, Iraq and Afghanistan. It opened the door for attacks in on Pakistan and Mali and the new drone bases in Niger and Djibouti. There are many more involvements under the veil of “train and assist” missions. US commandos are operating in 137 countries. Drone campaigns are intensified in many countries, especially in Africa. Unmanned aerial vehicles attacks have quadrupled under President Trump. The administration still wants to increase drone strikes and commando raids. The US military presence in other countries is mushrooming.
In 2013, businessman Donald Trump tweeted, “The president must get congressional approval before attacking Syria — big mistake if he does not!” Having become President, Donald Trump appears to forget his own admonition. Some time ago, the president said he would avoid interventions in foreign conflicts. Instead of investing in wars, he would spend money to build up America's aging roads, bridges and airports. Easily said and easily forgotten.
The legislation - a writ for war without temporal or geographic limits - allows any president a boundless and unchecked ability to start wars. No checks and balances are in place. A strike can be delivered anywhere anytime without deliberations. Meanwhile, the United States continues to conduct covert endless shadow wars under the radar and beyond any scrutiny. The president is free to launch a war on a whim.