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Rep. Emmer has a novel idea: actually declare war before fighting one

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According to Emmer, the Islamic State has already declared war on the U.S.

WASHINGTON — This week, Rep. Tom Emmer moved to do something the United States Congress has only done 11 times in its history: pass an official declaration of war.

On Wednesday, Emmer introduced a joint resolution to the House of Representatives to officially declare war on the Islamic State, a move he says is in direct response to last week’s terrorist attacks in Paris. “This is an unprovoked act of war against one of our allies,” Emmer said. “The Islamic state has actually declared war on the United States and others.”

The freshman representative from the Sixth District says he wondered immediately after the Paris attacks, in which 130 people were killed by eight ISIS-affiliated terrorists, what the U.S. response would be. On Monday, Emmer says, “I asked leadership what the plan was, and asked why we weren’t considering a declaration of war. No one said it wasn’t on the table.”

Emmer then, simply, put something on the table. His resolution simply reads: “Declaring that a state of war exists between the Islamic State and the Government and the people of the United States and making provision to prosecute the same.”

An exceedingly rare event

No member of Congress has moved to put forth a war declaration since 1941, when Congress approved six declarations of war on the Axis powers, marking the official beginning of U.S. involvement in World War II. The other formal declarations of war came in 1917, on the Central Powers in World War I, in 1898 on Spain, in 1846 on Mexico, and in 1812 on Britain.

In total, the U.S. has officially declared war on nine different states: Germany (twice), Japan, Austria-Hungary, Hungary, Bulgaria, Romania, Spain, Mexico, and Great Britain.

Since World War II, the U.S. has preferred to conduct its wars via Authorizations for Use of Military Force, laws that permit the president to use military force but are different from formal declarations of war. In Vietnam, the Gulf War, and the post-9/11 wars in Iraq and Afghanistan, AUMFs were utilized.

While AUMF and declarations of war both approve the use of force, there are a couple of important differences between the two. Mainly, declarations of war automatically authorize a broad array of actions presidents can take on the homefront during wartime, from imposing restrictions on trade to using public land for military purposes. That kind of authority isn’t automatic with an AUMF.

Declarations of war have also been applied uniformly to established nation-states, while AUMF have more often been used, as a Congressional Research Service report put it, “for broad authority to use U.S. military force in a specific region of the world in order to defend U.S. interests or friendly states as the President deems appropriate.” So, while the U.S. went to war against Saddam Hussein’s Iraq in 1991 under AUMF authority, that same authority applied to the fight against non-state organization al Qaeda in 2001.

Nothing for ISIS

The current fight against ISIS, which is primarily limited to airstrikes, has no updated AUMF or declaration of war underpinning it. The Obama administration says it has authority to carry out airstrikes based on the 2001 authorization to fight al Qaeda and the 2002 authorization for the Iraq War. Past attempts in Congress to deliver an updated AUMF for the president have fallen flat, and there’s little reason to believe one will succeed now. Republicans are reluctant to give more authority to a president they believe has the wrong strategy in the Middle East, and Democrats are wary of, yet again, authorizing broad military force in the region.

Beyond that, given that declarations of war have always applied to states and not non-state actors like al Qaeda, approving one could send the message that ISIS is a real state, which some in Congress might be reluctant to do. Emmer says we might as well treat it like one. “We have an organization that calls itself a state, occupies land, and by some estimates, has some 10 million people getting up every day under their rule,” he said. “They call themselves a state, we should treat them like a state.”

Even with a 13-year-old law as the foundation of the fight against ISIS, recent U.S. conflicts have been held up with less. The Korean War was not authorized explicitly by Congress, but was legitimized by the United Nations Participation Act of 1945, which permits the U.S. to intervene on the basis of U.N. Security Council resolutions. That law justified use of force in Panama in 1989 and in Bosnia in 1994, both not approved by Congress. Currently, there is no U.N. Security Council resolution against ISIS, though some world leaders are pushing for one.

As it stands today, Congress’ actions might not matter that much: according to the CRS, these days, executives have “welcomed support from the Congress in the form of legislation authorizing him to utilize U.S. military forces in a foreign conflict or engagement in support of U.S. interests, but has not taken the view that he is required to obtain such authorization.”

Emmer’s declaration of war — though he says it has been received favorably by his colleagues — is unlikely to pick up steam. But in a conversation with MinnPost, the congressman said he is seeking to send a message with his resolution. “The founders didn’t intend we have 536 Commanders-in-Chief…We have one Commander-in-Chief,” he said.

“Members of Congress can certainly be involved and consult, but it is up to the Commander-in-Chief to handle this,” Emmer said. “A declaration of war is simply telling him, Congress is with you. Go defeat this enemy — we’re behind you.”

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Comments (12)

Interesting Idea

My concern is that the US would be opening the door to legitimizing Daesh's occupation of territory by making it the functional equivalent of a sovereign nation.

It also opens a real can of worms if the battle were taken to Daesh supporters outside the area in Syria and Iraq claimed by them (people funneling money from donors in, say, Saudi Arabia). Attacking even combatants on neutral territory raises big legal issues.

Sure....

Unless a republican happens to be in the White House, in which case such requirements are roadblocks to protecting the Homeland.

What an original idea by the way...

Right!

Do we really want to legitimize a handful of criminal murderers by granting them the status of a state?
Would be then have to allow them to set up an embassy (with diplomatic immunity for its personnel) in Washington?
It would be like declaring the Mafia a state, and would probably limit our range of responses more than they are now. As it is, if an individual (or group of individuals) is a threat to our security we can pretty well do whatever is necessary to eliminate that threat.
Contrary to Emmer's assertion, a declaration of war would probably open the door to more Congressional meddling, not less.

Points to Mr. Emmer

…for making the prospect of further military operations in the Middle East more transparent, at least in the constitutional sense, but he might want to have a lengthy conversation with Mr. Bacevich (See Eric Black's post in today's MinnPost) before putting too much faith in his own proposal. Even if an official war against ISIS were successful – whatever that means (and the fact that we don't really know what that means is part of the problem) – the relevant question is, "What next?" To what end are we applying our diplomatic and military presence and effort? What public discussion has taken place about our ultimate goal in the Middle East? Without that discussion, there's no national agreement, to the degree that one might be possible, and the relevant questions of "why" and "how" and "to what end" can't even be addressed, much less answered.

Congress involvment

Congress controls the purse strings for the US military and regardless of what you want to call it has always had a hand in all military actions. All Emmer wants to do is put all the political responsibility of fighting ISIS on the president. There is an election next year including Congressional and the GOP would like nothing more than to blame the wars in the middle east on the Democrats. It is all partisan politics that could politically backfire which is why the GOP is not to anxious to pass it.

Not bad, Representative Emmer

A Republican doing some truly original thinking - now, that is to be commended. Emmer has been vastly more thoughtful than his predecessor. Perhaps the threat posed by ISIS will eventually help united our country and pacify the constant rancor between our two political parties, which long ago has caused great harm to our nation. Of course, if a country cannot even agree that orphaned children aren't a terrorist threat, the battle between the parties will make us much less able to respond decisively to real threats and separate them from imagined ones.

Agree 100%

Enough with the loud mouthed chicken hawks already: Only thing missing is the reinstatement of the draft W/O exception for college or anything else. Hard to believe there would have ever been agreement with Rep Emmer! If you want to kick butt, give the president the power to kick butt!

Tom Emmer is Al Franken

Not philisophically, of course, but the man's sensible actions and behavior in the cingress have impressed me, even if I'm on the other side of the aisle. He seems to be going out of his way to be a serious lawmaker...a rare beeed these days.

Howxa war against ISIL would be prosecuted...now there's the rub. I would syggest it is dine by attempting ti fully integrate moderate Islam into the west...we shall see what comes.

A little late

The Obama admin asked for a AUMF last year, Republicans shot it down. Still don't have one, so no legal options save executive orders which is what the Republicans wanted for the election cycle.

Geneva convention

Would a declaration affect the status of captured ISIS members with respect to rules pertaining to prisoners of war?

Just to be clear...

There is absolutely NOTHING original about this idea or thinking, We've had this debate with every non-war war we've had since Korea. A lack of formal war declaration was one of he rationals behind the laws that Reagan et al broke regarding support for the Contra's. I remind everyone that the reason North and Secord had to divert funds from Iranian weapons sales was that Congress had prohibited support for the Contra's and a proxy war.

Apparently some folks have forgotten so here are the reasons this idea never gets off the ground:

1) The constitution gives the commander chief authority to respond to immediate threats without seeking congressional approval. Remember Grenada?

2) If the pres needs a declaration, he'll get it. Remember Hillary's and John Kerry's votes for the war?

3) If the "enemy" is an irregular force that has attacked American interests, Congressional War Authorization isn't necessary. We didn't declare war on pirates, we just sent the Marines onto the shores of Tripoli.

4) Waddya gonna do if the President goes in without a declaration? Impeach the President? Did we impeach Reagan? He secretly mined Nicaraguan harbors, sent SEAL teams on secret raids, and built a terrorist army that attacked and killed tens of thousand of Nicaraguan civilians. These were clearly acts of war yet no one even went to jail for that. And yeah, we had a big damn debate about all of this at the time.

I'm not saying it's a bad idea, I've always like the idea, but you can't credit Emmer for coming up with it. And frankly, I wouldn't trust Emmer because rather than promoting peace I suspect this would be just another ploy to paralyze Democratic presidents. I don't think for one minute that Emmer would have "required" such a declaration of Reagan, or either Bush.

Forces put up or shut up

From this perspective it stops the sniping and arm chair quarterbacking. Committed vs involved. We usually lose when involved, win when committed.