Let the War Vote Go to Congress Now
President Donald Trump’s finest hour occurred when he courageously decided to remove our military forces from Syria and to slash them by 50 percent in Afghanistan, provoking the resignation of Secretary of Defense James Mattis shortly thereafter.
The withdrawals are consistent with Constitution’s Declare War Clause and Trump’s campaign promise to act as president of the United States, not president of the world. They create an opportunity to bring the nation’s foreign policy across the board into alignment with the constitutional gospel: that only Congress can initiate war.
The Declare War Clause defines what national interests justify offensive use of the armed forces: namely, whatever convinces majorities in the House and Senate to vote a declaration of war or lesser hostilities. That understanding was unanimous among the architects of the Constitution. Alexander Hamilton explained that the “plain meaning” of the Clause was “that it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy, or from provocations or injuries received; in other words, it belongs to Congress only to go to war.”
But Congress has never declared war against Syria. In 2013, it refused President Barack Obama’s request to authorize military force against Syrian President Bashar al-Assad over the alleged use of chemical weapons. Congress was unpersuaded that national interests were sufficiently implicated in the fate of Syria to risk the bones of a single American soldier.
Syria was cobbled together from the ruins of the Ottoman Empire after World War I to satisfy French colonial ambitions. It has been convulsed by a tribal-sectarian civil war since 2011 with no light at the end of the tunnel. It has and will continue to be a quagmire for Russia, Iran, and Turkey.
As with Syria, Congress has also never declared war against Afghanistan. The 2001 Authorization to Use Military Force unconstitutionally delegated that decision to the president. (The whole purpose of the Declare War Clause is to prohibit presidents from initiating war). Moreover, every al Qaeda participant in the 9/11 terrorist abominations has been either killed or captured. Afghanistan is splintered along religious, tribal, and ethnic lines. Its boundary with Pakistan was drawn by the British. Its primitive political culture is incorrigibly corrupt, misogynistic, and lawless. Despite squandering more than $1 trillion and deploying tens of thousands of troops in Afghanistan over more than 17 years, the director of National Intelligence, Dan Coats, concedes that victory is unattainable.
The Declare War Clause recognizes that members of Congress are more trustworthy stewards of the war power than would be the president. They are as patriotic. They sing the same national anthem. They recite the same pledge of allegiance. They celebrate the same Fourth of July. But whereas members of Congress gain nothing by concocting excuses for war, the president confronts irresistible temptations to do so. James Madison, father of the Constitution, elaborated:
War is in fact the true nurse of executive aggrandizement. In war a physical force is to be created, and it is the executive will which is to direct it. In war the public treasures are to be unlocked, and it is the executive hand which is to dispense them. In war the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions, and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.
Democrats and Republicans, liberals and conservatives have excoriated Trump’s alignment with the Constitution over Syria and Afghanistan despite a thousand mile an hour headwind generated by the multi-trillion-dollar military-industrial-counterterrorism complex. Like the domino theory exponents who gave birth to the Vietnam War, Trump’s detractors have forecast calamity in the aftermaths of exiting Syria and diminishing our military profile in Afghanistan.
They should stop shouting at the president and take their case to Congress as the Declare War Clause instructs. The best test of the truth of their claims will be their ability to persuade Congress to declare war against Syria and Afghanistan.
Constitutional processes, not policy, is our salvation.
Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.