Following the declassification of an intelligence report that named Saudi Arabian Crown Prince Mohammed bin Salman personally responsible for okaying the brutal murder of journalist Jamal Khashoggi, U.S. Secretary of State Anthony Blinken indicated that the Biden administration would not take steps to punish the Saudis. According to Blinken, the nation’s “relationship with Saudi Arabia is bigger than any one individual.”
From the perspective of the U.S. looking outward, this may be true, though it seems a poor excuse to effectively sanction murder. But, in the United States, foreign policy relationships are not bigger than one individual. As Congress has ceded much of its Constitutionally-given authority over declarations of war, the U.S.’ foreign entanglements increasingly rest on the judgment of a single individual: the President of the United States.
And that’s a problem because the post-9/11 argument for giving the executive branch more unilateral power over foreign affairs included a moral component. Yet, as Biden’s unwillingness to hold accountable state-sanctioned assassinations shows, the executive branch often defaults on that moral authority the second it looks to be even slightly inconvenienced by political repercussions.
The Constitutional division of war powers is a little complicated, as these powers are split between Congress and the executive in an attempt to prevent unilateral military action.
Article I, Section VIII of the Constitution gives Congress the power to declare war, raise and support armies and navies, and make rules for governing military forces. But Article II names the president commander-in-chief of the army and navy when the armed forces are called into service. This means the president has the power to lead the military, but he needs authorization from Congress to deploy America’s armed forces.
Ultimately, though the war powers are divided between the legislative and executive branches the bulk of power rests with Congress, which, though it is not ultimately more authoritative than the other branches of government, nevertheless is meant to have the majority of responsibilities delegated by the Constitution to the federal government.
But in the wake of the September 11 terrorist attacks, the executive branch argued the Constitutional balance of power needed to be realigned, giving it freedom to act swiftly and with moral authority. As the deliberative body, Congress’ authority to authorize military deployment was meant to ensure no single individual could run headlong into war. But, as the executive branch argued at the time, this also prevented it from quickly striking back against those who had attacked it.
Congress obliged the executive and passed two authorizations on the use of military force (AUMFs) in 2001 and 2002. The first AUMF authorized the president 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 2002 AUMF gave the president similar authority to begin the war in Iraq, but required that the president notify Congress no later than 48-hours after he’d decided to deploy military force.
For the past 20 years, the AUMFs have been the basis for U.S. military action in the Middle East. They have nullified the Constitutional requirement that Congress ultimately direct military action by declaring war and made the president, not the legislature, the driver of military action. Because the language used to give the president such sweeping and unilateral authority is vague, the AUMFs have been used to justify military strikes, like Biden’s recent strike against Syria, in areas of the world where Congress has not authorized military activity. Successive presidents are each able to use the AUMFs to give cover to actions that stray further and further from their purpose because neither bill included a sunset date.
AUMFs pervert the Constitutional order, which is significant not only because it affects rule of law, but because it has policy implications, too.
The decision to go to war, even when very clear provocation seems to justify a military response, is a weighty one. It’s Congress’ responsibility to debate that and discover whether reasons for entry into international debate that appear compelling on their service are really just a smoke-screen for advancing the narrower interests of politicians.
We’re now seeing the consequences of Congress’ defaulting on that responsibility. Without any oversight, the president is now able to pick and choose when defense of U.S. interests or moral duty compels military action and when the U.S. can turn its back on suffering and injustice perpetuated by rogue foreign actors, claiming to get involved would run contrary to the nation’s interests.
The argument for AUMFs wasn’t just about protecting American citizens and maintaining the nation’s standing on the international stage. It included a moral component. Ever since World War II, the U.S. has charged itself with not just defending human rights, but using military forces to proactively secure liberty for oppressed individuals around the globe.
But at the same time, the executive is comfortable bending the Constitution in order to protect the liberty of the peoples of the world, its diplomatic priorities are okay with sanctioning state-sponsored murder. These two things are not compatible.
They’re also extremely offensive to liberty, which the executive has the gall to use as a cover for its hypocrisy. And this is damaging to liberty, not just at home, where it uses the need to defend freedom to dodge Constitutional oversight, but abroad. Jamal Khashoggi was a U.S. permanent resident; he’s protected by the Constitution. Yet, at the same time the U.S. is willing to bomb countries in which it has no legitimate authorization to operate in defense of freedom and rule of law, it’s afraid defending the rights of one journalist, who sought protection from rogue regimes in the same nation that sells itself as a defender of freedom, would ruin its relationship with the same nation that killed him. So much for its commitment to protecting the freedom of the peoples of the world.
The AUMF allows the executive to use the cover of protecting freedom to pervert the Constitutional order. Yet, it can’t be bothered to use its Constitutionally-delegated authority to conduct foreign policy to protect the freedom of those who’ve sought out its security.
Such blatant hypocrisy harms the cause of freedom and it’s long past time Congress seized back its powers of oversight.
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