American withdrawal from Afghanistan and the War Clause
The decision to withdraw was inevitable, as every president ensnared by the war — Bush, Obama, Trump and Biden — knew painfully well. The putative Afghan government and military were riddled with incompetence and, worse, deep corruption that upended the noble efforts of the United States and its allies to liberate the country from the Taliban and pave the way for the emergence of some form of democracy. America’s decision to retreat is right for America, though it is a human rights tragedy of indescribable dimensions for the Afghan people.
The end of America’s longest war recalls its origins when Al Qaeda, the terrorist organization led by Osama bin Laden, attacked the United States on September 11, 2001. It recalls as well how the War Clause of the Constitution governs the initiation of military force and the significant legal questions surrounding the decision to invade Afghanistan.
The War Clause of the Constitution — Article I, section 8 — provides that Congress shall have power to “declare” war. The framers of the Constitution, to a man, agreed that this provision placed in the hands of Congress, not the president, the sole and exclusive authority to take the nation to war, whether through a formal declaration or authorization of war. Congress, alone, would decide whether to initiate full-blown war, or commence lesser military hostilities.
Delegates to the Constitution Convention, as James Wilson of Pennsylvania explained, “did not one man to hurry us into war.” Their radical break from the universal practice in the 18th Century of unilateral executive war making reflected as well their commitment to the republican principle of collective decision-making, the premise that the conjoined wisdom of the many was superior to the wisdom of one. This was particularly important when it came to the use of military force and the initiation of war, which required, the framers unanimously agreed, a vote by representatives in both the House and the Senate.
When Congress named an enemy of the American people, through either a formal declaration or simple authorization, the decision informed the citizenry that the nation had been placed on a war footing, which triggered a variety of laws, including those that prohibited trading with the enemy. A congressional determination and identification of the enemy, rather than a presidential determination, was critical to keeping the war power in the hands of Congress. A president free to name an enemy of the people could engage the nation in war at his pleasure, a power that would rob Congress of its authority — and duty — to decide for war or peace.
The framers, it will be recalled, did not vest the war power in the president. Although the president was appointed by Article II, as “Commander in Chief of the Army and Navy when called into the actual Service of the United States,” it is Congress that does the calling. This constitutional assignment vested in the president, as both James Madison and Alexander Hamilton explained in the Convention, the authority to direct war, “once authorized or begun.” Congress would authorize war; a foreign nation might “begin” a war by attacking the nation. In the case of an invasion, the president bears the responsibility of driving the invaders out of the nation. Once the invasion has ceased, it is for Congress to decide what course of action the United States might pursue, a decision that invites a range of options, including authorization of the use of force against the nation that attacked the United States.
Following the 9/11 outrage, President George W. Bush submitted to Congress proposed legislation — “The Use of Force Act” — which would authorize the president to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” the attacks on the United States. On September 14, the bill easily passed in both chambers — in the Senate by 98-0, and in the House, 420-1. At first blush, it appeared that the administration and Congress were both adhering to the War Clause. A closer look, however, reveals important flaws in the actions of both branches.
The first problem is that the grant of authority to the president, a delegation of the war power, contradicts the War Clause and the framers’ aims and purposes. The vice in the Use of Force legislation is found in its grant to the president of authority to take military measures against those whom “he determines planned, authorized, committed or aided” the attacks on the United States. Note that Congress did not name an enemy of the people, as required by the War Clause. Instead, Congress delegated or transferred that choice to the president. Congress, in other words, abdicated its constitutional responsibility to decide for war, against a named enemy. Congress is prohibited from delegating to the president the authority to go to war, just as it is prohibited from delegating the lawmaking or appropriation powers.
The second constitutional flaw in the process is found in President Bush’s report to congressional leaders, two days after the initiation of military activities in Afghanistan.
President Bush stated that he had undertaken the combat actions “pursuant to my constitutional authority to conduct U.S. foreign relations as Commander in Chief and Chief Executive.” Bush did not cite the “Use of Force” legislation as authority for his acts, but only as “support,” for his decisions, which he claimed he could make independently of Congress.
President Bush’s language reflected his belief that as president, he might engage in unilateral executive war making. As we have observed in previous columns, the president was granted no authority to take the nation to war. The congressional power over matters of war and peace are so sweeping as to permit Congress, in the words of Madison, to “commence, continue and conclude war.” Congressional authority to commence war could be usurped by presidential war making, just as congressional authority to conclude war might be aggrandized by presidential assertion of constitutional power to end war. The congressional power to “continue” war, as Madison explained, requires congressional possession of authority to impose instructions and directions upon the president, ordering or prohibiting troop deployments, for example, a broad authority upheld by the Supreme Court at the dawn of the republic.