By Maj. Danny Sjursen/ Truthdig/ March 21, 2018
[T]he 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. …
—S.J. Res. 23 (107th): Authorization for the Use of Military Force (AUMF), Sept. 18, 2001
The President is authorized to use the Armed Forces of the United States as he determines to be necessary … in order to … defend the national security of the United States against the continuing threat posed by Iraq. …
—H. J. Res 114 (107th): Authorization for the Use of Military Force Against Iraq, Oct. 18, 2002
It’s all so obvious to a detached observer. Nonetheless, it remains unspoken. The United States of America is waging several wars with dubious legal sanction in domestic or international law.
The U.S. military stands astride the Greater Mideast region on behalf of an increasingly rogue-like regime in Washington, D.C. Worse still, this isn’t a Donald Trump problem, per se. No, three successive administrations—Democratic and Republican—have widened the scope of a global “war” on a tactic (terror), on the basis of two at best vague, and at worst extralegal, congressional authorizations for the use of force (AUMF). Indeed, the U.S. is veritably addicted to waging undeclared, unwinnable wars with unconvincing legal sanction.
Despite 17 years of fighting, dying and killing, there have been no specific declarations of war. Instead, one president after another, and hundreds of derelict-in-their-duty congress members, have simply decided on their ownthat a vague resolution, rubber-stamped while the rubble in New York was still smoking, authorizes each and every conflict in which America’s soldiers—and many more civilians—continue to die. This AUMF authorized the president to kill or capture those who perpetrated the 9/11 attacks, but, well, few of America’s current adversaries had anything to do with that.
If that doesn’t seem sufficient, Washington points to the only other congressional framework for perpetual war, the long-ago discredited war resolution, which sanctioned George W. Bush’s deceitful conquest of Saddam Hussein’s Iraq. But Saddam is dead and his regime gone, replaced by a U.S.-imposed chauvinist Shiite government which is now (tenuously) sovereign in Baghdad.
The specific circumstances surrounding that war resolution have passed.
So, you ask, how can, for example, war in Yemen or Somalia, be justified on the resolution’s account? Because the policy elites don’t care about logic or rational deduction, that’s why. It’s a convenient ruse, and they assume we’re not paying attention.
And the rest of us, well, we stay mostly silent, wrapped up with trying to earn a living in America’s new Gilded Age, its vastly unequal economy, and remain distracted by fancy handheld computer technology. They, the ones who act in our name—liberal and conservative policymakers alike—count on your apathy. They don’t want you to scratch off the veneer of legality and question the basis of each individual forever war in the Mideast. That would be inconvenient, but it is exactly what true citizens must do.
Let’s take a quick regional tour of some of America’s various shooting wars, and critically examine their legal sanction as it relates to the two existing AUMFs.
● How about we begin with the next massive quagmire awaiting the U.S. military in the Mideast: Syria. Almost no one realizes that the U.S. is now the proud owner of approximately one-third of Syria. Sure, we rent it out to various allied, mostly Kurdish militias, but it’s U.S. air power and a few thousand ground troops which make that possible. America got into Syria, ostensibly, to combat Islamic State—a truly brutal group.
Still, strictly speaking, there was no Islamic State in 2001, and there weren’t any Syrians among the 9/11 hijackers. Now, one might argue that Islamic State is a spinoff of al-Qaida, which did attack the United States. Careful though—by 2014, Islamic State had split from the local al-Qaida franchise (the Nusra Front), and the two had become warring rivals. More confusing still, while one could argue the 2001 AUMF covers al-Nusra, the U.S. has rarely attacked it and, indeed, sometimes armed and supplied Islamist elements affiliated with the group. What a twisted legal web Washington has spun.
Still, there the U.S. military now stands, responsible for the hopes, dreams, sustenance and well-being of millions of Syrians. Its troops aren’t going anywhere anytime soon, either. Before Secretary of State Rex Tillerson was canned, he announced that U.S. “troops will remain in Syria”—essentially indefinitely—“to ensure that neither Iran nor President Bashar al-Assad of Syria will take over [these] areas.”
That’s strange. Assad is a brutal monster, sure, but he remains the sovereign ruler of Syria, and, well, technically he didn’t invite the U.S. military into his country. That means, in a certain sense, that only Russia and Iran—purported American adversaries—have any legal sanction in Syria. So, to review, the U.S. military occupies the east of Syria, facing down and one mistake away from a war with Assad, Iran, Russia and Turkey. That sounds risky. Oh, and one more question, do the 2001 or 2002 AUMFs cover the U.S. killing of scores of Russian mercenaries? Because that happened, too, just last month.
● The world’s worst humanitarian disaster zone today is in the Arab world’s poorest country: Yemen. Here, U.S.-backed Saudi planes drop American bombs on Yemeni Houthi rebels from planes fueled in midair by the U.S. Air Force. Though the official count of civilian deaths seemed to stop at 10,000 in 2016, journalist and Yemen specialist Iona Craig, of The Intercept, told me this week on my podcast that the real number probably approaches 50,000.
That’s just the direct, war-related deaths. The bombing and Saudi—and arguably U.S. Navy—blockade also has kicked off a record-breaking cholera epidemic and a worsening famine. Children literally starve to death in Yemen. The Houthis, a Shiite sect from northwest Yemen, had nothing to do with 9/11 and hardly collaborated with Saddam’s Iraq. How, then, can we square U.S. complicity in Saudi terror-bombing with international or domestic law? Short answer: We can’t.
● In Somalia, where the U.S. military has maintained an on-again, off-again presence since 1993, the Air Force bombs and Navy SEAL commandos raid the native al-Shabab militants. A particularly nasty bunch ensconced in a nastier neighborhood, al-Shabab didn’t even exist in its current form in 2001, and certainly had nothing to do with the 9/11 attacks. With no known relationship to Saddam Hussein, it’s hard to see how these Islamist militiamen fall under either AUMF.
● Niger hit the headlines in a big way last year when four Army Green Berets died in a vicious ambush. No one, it seemed, not even superhawk Sen. Lindsay Graham, knew we had any troops there. Apparently, that’s no longer a requirement for the places America sends its soldiers to kill and die. Heck, most Americans had to look up the country’s pronunciation and scramble to find the joint on a map.
Here, as in most foreign interventions in the African Sahel, the U.S. (and France) are being sucked into essentially local tribal, resource or ethnic conflicts that masquerade as transnational Islamism. These desert fighters had nothing to do with 9/11, the local Islamic State affiliate didn’t exist in 2001, and Niger is 3,000 miles or so from Saddam’s old haunt in Iraq.
On the bright side, the U.S. military was kind enough to grant retroactive “imminent danger” pay—a whopping $225 a month—for all the troops in Niger and Cameroon. You see, sometimes Washington doesn’t even know it’s in a barely sanctioned “imminent danger” situation, what used to be called a war, until after the fact.
● Finally, the boondoggle of all boondoggles, the original unwinnable war: Afghanistan. In this case, al-Qaida did once operate there and the broad contours of 9/11 were planned in Afghanistan. That was 2001. By 2002, al-Qaida was all but finished in Afghanistan and had fled to Pakistan and other regional locales. The war didn’t end though, not by a long shot. Seventeen years on, and the U.S. is again ramping up its longest war. Why? Because the stubborn Taliban that once harbored Osama bin Laden won’t surrender.
Honestly, though, let’s call it like it is: America’s chosen nemesis there—the Taliban—is, and essentially always was, a local actor with aspirations confined to landlocked Afghanistan. Most of these illiterate, destitute farm boys have never met any al-Qaida. Truth is, negotiations with the Taliban might convince these folks not to harbor al-Qaida-classic in the future. That wouldn’t serve the Taliban’s local interests, after all, and would bring on the continued wrath of U.S. bombers and commandos. To give a sense of how far off the rails U.S. policy has gone in Afghanistan, American planes started bombing ethnically Uighur Chinese militants last month. Tell me how that crew relates to either of our vague AUMFs? The whole notion is absurd.
On the bright side, the U.S. military was kind enough to grant retroactive “imminent danger” pay—a whopping $225 a month—for all the troops in Niger and Cameroon. You see, sometimes Washington doesn’t even know it’s in a barely sanctioned “imminent danger” situation, what used to be called a war, until after the fact.
● Finally, the boondoggle of all boondoggles, the original unwinnable war: Afghanistan. In this case, al-Qaida did once operate there and the broad contours of 9/11 were planned in Afghanistan. That was 2001. By 2002, al-Qaida was all but finished in Afghanistan and had fled to Pakistan and other regional locales. The war didn’t end though, not by a long shot. Seventeen years on, and the U.S. is again ramping up its longest war. Why? Because the stubborn Taliban that once harbored Osama bin Laden won’t surrender.
Honestly, though, let’s call it like it is: America’s chosen nemesis there—the Taliban—is, and essentially always was, a local actor with aspirations confined to landlocked Afghanistan. Most of these illiterate, destitute farm boys have never met any al-Qaida. Truth is, negotiations with the Taliban might convince these folks not to harbor al-Qaida-classic in the future. That wouldn’t serve the Taliban’s local interests, after all, and would bring on the continued wrath of U.S. bombers and commandos. To give a sense of how far off the rails U.S. policy has gone in Afghanistan, American planes started bombing ethnically Uighur Chinese militants last month. Tell me how that crew relates to either of our vague AUMFs? The whole notion is absurd.
* * *Across the Greater Mideast today, the U.S. is bogged down in a growing number of dubiously legal wars it can’t seem to win. One look at the strategic map tells a gloomy tale: The U.S. military, ensnared in country upon country, is unable to achieve victory and unwilling to prudently withdraw. The U.S. position in Syria and Iraq is tenuous as ever. American soldiers are surrounded by hostile adversaries and unreliable frenemies on all sides: Iran, Russia, Turkey, Assad and Hezbollah.Matters are even worse than they appear. There’s no discernible strategy, folks. The U.S. holds a bad hand and is playing it badly. The American people hardly care, media coverage these days is all Russia, all the time, and Congress has these wars on autopilot. Furthermore, seen through foreign eyes—which matter, by the way—there’s a distinct gap between U.S. public pronouncements about liberty and sovereignty and America’s adherence to the international laws governing such ideals.
Behind the standard American-freedom rhetoric, and beneath the surface lies an unspoken truth: The USA flouts international law when it suits American interests and stretches domestic authorizations to their breaking point in the name of perpetual, doomed warfare. We the people are all complicit, until, that is, we demand that Congress do its constitutional duty and specifically approve (or shut down) the forever wars.
Democracy dies in the darkness exuded by the clouds of foreign wars. The fate of the republic—what remains of it—hangs in the balance.
The U.S. may be a republic or an empire. It may not be both. Now is the time for choosing.
The views expressed in this article are those of the author, expressed in an unofficial capacity, and do not reflect the official policy or position of the Department of the Army, Department of Defense, or the U.S. government.
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Arlen Grossman, here is an idea for you: Prosecute the congress for their role in all of these illegal wars. This idea that George W. Bush deserves all of the blame for the fiasco in the Middle East is absurd.
I agree. Congress is complicit in all of these “wars.” (I don’t consider them wars. More accurate would be “invasions.”
Arlen Grossman, if George W. Bush presented faulty intelligence and used that as an excuse to invade Iraq, the man should be prosecuted for war crimes. However, if the Congress went along with it, they should also be prosecuted. It can’t be had both ways.
Arlen Grossman, there are multiple factors at play regarding the legal vs. illegal argument that is made regarding war. If Congress did not technically declare war, however, they went along with it, they would be just as guilty of war crimes as the President that was also accused of committing them. If the Constitutional requirement to declare war was validated by the Congress and the President also gave approval, the case is closed. On the other hand, if Congress sent the President a bill to declare war and the President vetoed it, which was overridden by Congress, who deserves the greater blame when things go to hell in a handbasket-the President who said no or the Congress who said yes?
Ragnar: Good points, all. A timid Congress has dropped the ball on declaring war for decades, so presidents feel fine taking over the job.
Arlen Grossman, by your reasoning, the Congress and the President should be prosecuted.
Of course they should. But it will never happen because they control the government.
Arlen Grossman, here is a hypothetical scenario for you: The U.S. Congress is declaring the war on drugs to be legal and Constitutional and the U.S. Supreme Court rules it as being illegal and Unconstitutional. Who has the better argument about its legality-the U.S. Supreme Court that declared it as being Unconstitutional or the Congress who formally declared that war?
Arlen Grossman, one war that should have no legality is the war on drugs. In a free society, it should be seen as an oxymoron for someone to go o jail for committing a crime against him or herself. Where do you stand on the drug war in general?
Arlen Grossman, even though neither the war in Iraq or in Afghanistan had any involvement on the part of Al-Qaeda, there are some things that we may never know as to the motivations for each war. Now, if you want to go after George W. Bush and his administration, you might as well indict the whole congress. They gave license to it, so they should be out of office according to your reasoning.
Arlen Grossman, I was reviewing a comment I had made where I said that having a time machine which would enable me to see the end result of the various wars you claimed have no legality. For the record, I am not defending any of them. My position is that if the Congress gave its blessing to go to war, regardless of what international law has to say, the blame for any of its negative effects should lay at the feet of Congress.
Sure, Congress doesn’t like to make difficult decisions,so they give up that authority to the president. If they authorize it, they should be held responsible for what results from the wars.
Arlen Grossman, we agree on that. What is to be done if congress gave its blessing to go to war and the general public said it was illegal? Who has the better argument-the congress or the public at large?
Arlen Groissman, saying, “A war is illegal because I object to it, not because Congress authorized it” is a bad argument. That argument could be made about any bad policies and there are times when it would not have any validity. You could make that argument about the drug war and it would take the U.S. Supreme Court to issue a ruling on the Constitutionality of said war.
Arlen Grossman, the problem with the argument that a war may be seen as illegal under international law is that some people can make the argument that there was no basis for any and all wars between World War 2 and the war in the Middle East and seem credible. The problem, as one of the other people commented said, is that saying a war is illegal because one objects to it is a bad argument. Now, if Congress declared a war as being legal and legitimate, case closed. It does not matter what the general public will say.
The last time the U.S. Congress declared war was WWII. Every invasion (AKA war) since then has pretty much been a failure and an enormous waste of money. Congress needs to step up and take over the responsibility of declaring “war,” as the Constitution demands.
Arlen Grossman, I am not supporting or opposing all of the wars that are discussed. Let history be the judge.
Ragnar, I’d be curious as to what wars since WWII that you feel were worth supporting. I’d have a hard time naming one.
Arlen Grossman, if I could time travel to the time prior to each war between WWII and now and see it all firsthand, it would give me greater perspective. Just my thoughts.
I can’t argue with that. Let me know when you find that kind of machine.
Arlen Grossman, I can only roll my eyes with disdain at people who make an argument that a war is illegal because said people object to it. Just saying that a war is illegal because one objects to it is a b.s. argument to make. If one objects to a war, speak out against the war in question. Simple as that.
There is an issue too, of international law, since we usually go to war without being attacked ourselves. That makes it illegal under international law.
Arlen Grossman, what are your thoughts on the terminologies of prisoner of war and enemy combatant? I think a distinction can be made, however, where can they have effectively the same meaning from your way of thinking?
Arlen Grossman, it falls upon the Congress to declare or refuse to declare war. If Congress declares war legally and the public claims it is not legal, then the public is naive.
Arlen Grossman, if Congress had issued a formal declaration of war in all of the examples you mentioned, that would negate any claim against the legality of each one by people who said that they were illegal. Just saying that a war is illegal because you object to it is not a valid argument. An example would be the war in Iraq. Had it been proven that the war was legitimately declared, all claims of it not being legal would be due to certain people being Constitutionally illiterate.
Only the president should be prosecuted for war crimes if he violated the Constitution to wage a war not declared by Congress. He is the one in charge. Legislators shouldn’t be prosecuted for something they didn’t do. George W. Bush and other presidents should be prosecuted for illegally fighting wars not declared by Congress. What is so difficult to understand when the Constitlution clearly states Congress has the power to declare war?
Arlen Grossman, any argument that is made against war that basically says it is illegal because you object to it, not because Congress authorized it, is a bad argument. Is it true that some wars are unjustified? Yes. The Civil War is one example of an unjustified war.
I’m not clear about your objection, Jeffrey. Only Congress has the power to declare war, so if they don’t, by definition it is illegal. Seems clear to me.
Okay, I’ll bite. Why was the Civil War unjustified?
Arlen Grossman, the Civil War was unjustified because the alleged motive for it was freeing of the slaves. Slavery was a stain on American history, yes. However, it was also going out the door eventually. Abraham Lincoln also said that any state that wished to secede from the union would not have been permitted to do so on his watch.
Slavery was the “alleged” motive for the Civil War? Please, Jeffrey, tell me a more important motive.
The South wanted to keep slavery and therefore decided to secede from the union. And what is your evidence that slavery “was going out the door”? It was an important part of the Southern economy. Should Lincoln have allowed slavery to continue for an undetermined time?
Arlen Grossman, the cotton gin was coming into being (I think that this is a good reason for it,) so that seems to be one factor. Another factor is the issue that Abraham Lincoln said that any state that did not wish to participate in the Union would not be allowed to secede from the Union.
Arlen Grossman, if they went along with it, they should be prosecuted. They may not have “authorized” it per Constitutional demands, however, they are just as guilty by going along with it.
Arlen Grossman, one power given to Congress under the U.S. Constitution is the power to declare war. Just saying a war is illegal because one objects to it is not in and of itself a valid argument against war. This is just a mindset of those who are Constitutionally illiterate. I could say that I oppose the war on drugs, which I do, however, as long as it goes on, I have no right to beef about the legality of it. Had Saddam Hussein been proven to have the weapons he was accused of having (which he moved to Syria to cover his ass,) this would not only have vindicated the opinions of the George W. Bush administration, it would also negate the claims of opponents of the war that the war was not legal.
(1) Jeffrey, the Constitution is clear that only Congress can declare war. Therefore, every war since WWII has been illegal: Vietnam, Afghanistan, Iraq, etc. Wouldn’t you agree?
(2) Iraq did not have WMDs. I believe we were lied to. Whether Sadda, moved them to Syria or not has not been established (except in right-wing media), Clearly the Iraq invasion was illegal, by international law as well as by the Constitution.
Arlen Grossman, even if the wars were illegal, by your logic, all members of the legislative branch and the executive branch from World War II to the present should be prosecuted for war crimes. Why were they not? Because no war crimes were committed in any of those instances.