If we’re going to be in perpetual war, how about authorizing that in the Constitution?

REUTERS/Joe Skipper
An honor guard carrying the coffin of Sgt. La David Johnson, who was among four special forces soldiers killed in Niger, at a graveside service in Hollywood, Florida, on Oct. 21.

Among the many Trumpian brouhahas, you may recall one from a month ago about whether the current incumbent president disrespected the mother of a young soldier who was killed in Niger. I’m not going back to that question but to this one: 

Why are we in Niger? Do you recall hearing that the United States was at war in that small landlocked African nation of about 21 million population that most of us couldn’t find on a map without help?

Hold that thought, while I go on a small constitutional ramble.

Because it is the holy bible of our national religion, we sometimes pretend the Constitution says things and means things that the authors never contemplated, nor could have. We pretend to pay great fealty to its every jot and tittle. But, when necessary or convenient (as it more and more often is) we just pretend that it means whatever we need it to mean.

The Framers assigned to Congress (Article I, Section 8, Clause 11) the power to “declare war.” After a war has been “declared” by Congress, the Constitution puts the president in charge of waging the war in his capacity as constitutionally named (really, just a passing reference in Article II, Section 2) “commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.”

But Congress has not declared war on Niger nor in Niger, nor on or in many other countries in which our troops are currently stationed, including many in which they are engaging in activities that look very much like war. The last congressional declaration of war was World War II, after the bombing of Pearl Harbor by Japan. That declaration expired with the end of World War II.

Although we still have troops in Japan (50,000 or so) and a lot of other places, we’re not still fighting World War II, and we’re not fighting anyone in Japan. Maybe, since Sept. 11, 2001, we are fighting a “war on terror,” but that is not a “declared” war, in the constitutional sense. And maybe the current fashion is, instead of declaring war, to adopt what they call an AUMF (authorization for the use of military force). And maybe that’s close enough to a congressional declaration of war, although the Constitution uses the phrase “declare war” for what Congress is supposed to do to activate the president’s war powers, not “authorize the use of military force.” And maybe none of that works in the age of The War on Terror. I’m pretty sure when they framers assigned the power to declare war to the Congress, they had in mind declaring war on an enemy country, not on an abstraction like “terror.”

When the news broke about the deaths in Niger, Sen. Lindsay Graham, R-South Carolina, an Air Force veteran who also serves on the Armed Services Committee and pays an elevated amount of attention to such matters, said, “I didn’t know there [were] 1,000 troops in Niger … but this is an endless war without boundaries and no limitation on time and geography.” Graham wasn’t complaining about a war without boundaries or limitations. He was complaining only because he thought the executive branch should’ve kept him better informed.

I borrowed that Graham quote from this excellent “Rolling Stone” piece by Matt Taibbi, which also carried a subheadline of: “Americans rolled over for decades while we gave the executive branch unreviewable authority to kill – now that power is in the hands of an idiot.”

I’m sure I agree that having the unimaginable killing power of the U.S. military in the hands of the current incumbent is highly worrisome. But, as Taibbi makes clear, it is the culmination of many decades of overruling the constitutional plan.

Maybe you cannot imagine a United States that is not at perpetual war. I can. Maybe you think modern conditions make it necessary to authorize every president to order the killing, by military means, of anyone he or she believes needs to be killed anywhere in the world, by means ranging from drone strike to bombing to invasion, without the necessity of congressional authorization.

If so, and if we’re really so worshipful of our Constitution, then people who believe that should campaign to amend the Constitution to make that clear. All it takes is a two-thirds vote of both houses of Congress and ratification by the legislatures of 34 of the 50 states. Or maybe just admit that the Constitution can be disregarded when it gets in the way of invading whom you think needs to be invaded.

Man, I gotta stop drinking so much coffee.

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Comments (34)

  1. Submitted by Dan Landherr on 11/30/2017 - 10:21 am.

    Wars are between nation-states

    We are witnessing a decline in the significance of the nation-state as people use communications technologies to arrange themselves into affinity groups where geographical borders do not matter. The United States as a republic is endangered if we can no longer agree on common principles for organizing as Americans.

    • Submitted by RB Holbrook on 11/30/2017 - 02:30 pm.


      A declaration of war serves to sever all ties between two nation states, and also abrogates any treaties between them. The declaration also triggers the application of the law of war regarding treatment of neutrals, civilian non-combatants, enemy property, etc. If the military action is against a non-state combatant, there doesn’t seem to be any purpose to a formal declaration.

      At the time the Constitution was drafted, there was a growing consensus that a formal declaration of war would not always be necessary as a precondition to hostilities. Some would say it’s just a hold-over from more chivalrous times, when it was considered only gentlemanly to let your enemy know you were planning to attack.

  2. Submitted by joe smith on 11/30/2017 - 10:51 am.

    Have a clear objective when putting troops

    on the ground. Look at the simple difference between the Obama administration and Trumps in N. Iraq and Syria concerning the caliphate and ISIS. With Obama, it was first the JV team and let’s pretend they are not a problem then it became an “philosophy” that we couldn’t defeat. With Trump the military folks gave him a game plan to throw ISIS out of the area and collapse the caliphate dream. Within a year the area has been cleaned up and the dream of caliphate has been crushed.

    It has never been the military that is to blame for perpetual war, it is the politicians. Give them a clear objective that doesn’t include “nation building” and our troops will be in and out!!

    • Submitted by Thomas Eckhardt on 11/30/2017 - 12:01 pm.

      Whose Plan

      The campaign to eliminate ISIS began with Obama. Trump isn’t doing anything new or at a greater scale.

      As to getting our troops in and out, they’re still in Afghanistan, Iraq, Syria and so on. Trump’s not taking anyone out of anywhere.

    • Submitted by RB Holbrook on 11/30/2017 - 12:24 pm.

      Two Points

      First, from a constitutional standpoint, the quibbles about who would have done what better are utterly meaningless. Sure, it’s an opportunity for the daily dose of anti-Obama snark, but it has nothing to do with the important question of the constitutional justification for endless war.

      Second, in a democracy, the “military folks” should see their authority subordinate to the civilians (even if they are “politicians”). It’s what keeps us from turning into a military dictatorship, and it is also a way of making sure blood and treasure are expended in ways that comport with our national priorities. As Georges Clemenceau once said, “War is too important to be left to the military men.”

      Whatever the military efficiencies imagined may be, it cannot be a good thing for our democracy to have a system in which the Chair of the Armed Services Committee does not know about a commitment of 1000+ soldiers in a foreign country.

    • Submitted by Pat Terry on 11/30/2017 - 12:46 pm.

      Could not be more wrong

      Your description of what happened with ISIS is pure fiction, especially the notion that the area has been “cleaned up”.

      Do you remember “they will great us as liberators”? “Mission accomplished? How did that work out in Iraq? Nation building is a necessary part of any invasion. Without the nation building, you just leave a vacuum and something worse will emerge. Better yet, don”t invade at all. We wouldn’t even have ISIS if Bush hadn’t started an unnecessary war in Iraq.

      • Submitted by Ilya Gutman on 11/30/2017 - 09:37 pm.

        “Nation building is a necessary part of any invasion. Without the nation building, you just leave a vacuum and something worse will emerge.” Not at all. In and out and let them figure it out… After that, the new ruler will know what happened to the previous one and would behave accordingly.

        • Submitted by RB Holbrook on 12/01/2017 - 10:24 am.

          “In and out and let them figure it out”

          And what happens while they are “figuring it out?”

          Consider the history of Afghanistan. The Soviet Union withdrew in disgrace from the Graveyard of Empires, without leaving any kind of government or civil society in its place. In politics as in physics, nature abhors a vacuum, so the Taliban stepped in. They let the country be turned into a terrorist haven. The Taliban were driven out by the US-led coalition.

          What was going to happen next? Al Qaeda or other terrorist organizations were just going to stand by, having learned their lesson? Or would some other power step in? Would Russia take another crack at it? Maybe China would like a turn?

          As bad as the situation in Afghanistan turned out to be, it’s hard to imagine a scenario that would have worked out better.

          • Submitted by Ilya Gutman on 12/01/2017 - 12:44 pm.

            “In politics as in physics, nature abhors a vacuum, so the Taliban stepped in. They let the country be turned into a terrorist haven” I made a point about vacuum many times before myself (in response to some people advocating American withdrawal from the world) so you are correct on this. However, it was the USSR which left Afghanistan in disgrace as you pointed out and everyone knew that it was not in a position at that time to go back in. America could have (and should have) dealt with Taliban and al Quaeda in 1998, after terrorist bombings in Africa but it didn’t, limiting itself to just a few cruise missiles. Clinton showed lack of determination and will to use power and, as a result, we had 9/11.

            • Submitted by RB Holbrook on 12/01/2017 - 12:58 pm.

              African Bombings

              The government of Afghanistan was not a sponsor of the 1998 African bombings. The Taliban government did not have close ties with al Qaeda until after the US cruise missile strikes. A full-fledged invasion then would have been of, at best, dubious legality.

              • Submitted by Ilya Gutman on 12/01/2017 - 08:42 pm.

                “The government of Afghanistan was not a sponsor of the 1998 African bombings.” I don’t think it was a sponsor of 9/11 either – I think they actually condemned it. America should have demanded they hand out bin laden in 1998, just like we did in 2001, and then act accordingly.

                • Submitted by RB Holbrook on 12/04/2017 - 10:06 am.

                  “America should have . . .”

                  “America should have demanded they hand out bin laden in 1998, just like we did in 2001, and then act accordingly.” That is exactly what happened. The Taliban refused, citing the obligation Islam puts on hosts.

                  I have seen some claims that the Afghan government was negotiating to hand bin Laden over to the Saudis in 1998, but refused to do so after the American missile strikes. This strikes me as implausible.

                  • Submitted by Ilya Gutman on 12/05/2017 - 12:32 pm.

                    “That is exactly what happened. The Taliban refused, citing the obligation Islam puts on hosts.” If what happened after that happened in 1998, we would not have had 9/11.

  3. Submitted by Ray Schoch on 11/30/2017 - 01:12 pm.


    For what very little it’s worth, let me offer an alternative to Constitutional Amendment, or even worse, ignoring the constitutional environment altogether and simply relying on the moral judgment of whoever it is that’s occupying the Oval Office. We merely need (“merely” is used here with tongue very far into cheek) Congress, that activist legislative body that snaps into action over even the tiniest crisis, to do what’s constitutionally mandated. That is, Congress needs to pass a Declaration of War. It will be difficult, if not impossible, to single out a particular nation-state as worthy of our full-on military might, but I’d even settle for a real, genuine, declaration against “terrorism,” with an appropriate definition thereof, so that we, they, military leaders and “grunts” on the ground, know the basis for people risking their lives on our side, and being killed on the other side.

    Without it, what we’re watching (and paying for with our tax dollars) is state-sanctioned homicide. In thousands of Middle Eastern households that loathe ISIS, never supported Bin Laden, and thought the destruction of the Twin Towers in New York City an act of barbarism, the United States will nonetheless be “the Great Satan” for generations to come because of the many thousands of quite innocent people killed as “collateral damage” to a “campaign” (since we don’t have that declaration of war) that has never had a clear focus or strategy, and apparently has no end date.

  4. Submitted by Curtis Senker on 11/30/2017 - 01:30 pm.

    “All it takes is a two-thirds vote of both houses of Congress and ratification by the legislatures of 34 of the 50 states.”

    There are a lot of leftists scrambling to re-write the 1st and repeal the second amendments, too. It took 115 years to ratify the last amendment (the 27th) to be ratified….better get crack in.

    I don’t disagree that the power to wage war has been twisted beyond recognition, but once the 10th amendment was debauched, it doesn’t surprise me when others are treated with similar disregard.

    Here’s an idea. How about we shrink our government back to the scope and size the founders envisioned? Big enough to fulfill the duties delegated to it, but small enough to keep an eye on and keep under control.

    Crazy talk, I know. Good luck with your amendment.

    • Submitted by Pat Terry on 11/30/2017 - 02:35 pm.

      Crazy talk

      “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

      – Thomas Jefferson

      What some people think the “founders envisioned” and what the founders – who were a very diverse group (ideologically – they were all white men, of course) – actually believed are very different things. They set up a constitution that could be amended and a court system to interpret it.

      The founders – who allowed slavery and barred women from voting – wouldn’t recognize the country today. But the idea that what evolved over time is astray of what should have evolved is nonsense. Its a different country and a different world today.

      • Submitted by Curtis Senker on 11/30/2017 - 05:37 pm.

        As you day, aside from the color of their skin (this, yet again..eyeroll) the founders were not of a single mind. Despite that, they were successful in crafting the document that has served the most successful experiment in Democracy the world has ever seen very well into the present year.

        Your opinion as to the worth of the evolution of America holds as much weight as anyone that disagrees with you. Nevertheless, as I say, and as the author of this story has noted as well, they put a process in place to make changes. Have at it.

      • Submitted by Dennis Wagner on 11/30/2017 - 07:21 pm.

        If you don’t mind?

        The founders were also visionaries, and realists. Seems folks struggle to understand that, there were things they knew they couldn’t get done, but wanted to, yes they had moral and ethical values. They also knew that drifting too far from “norm” each has their own interpretation, could lose you the power to be a significant contributor moving forward. As with “T” voters, some folks don’t have the ability, or perhaps even the desire to see what could be or should be, low to no vision. I think depending on the founder, they would be in amazement on somethings and horrified on others. Suspect, like many folks, they would ignore what was inconvenient, or would find a work around, even though they wrote the rules! Call a war a skirmish, a rebellion, civil strife etc. anything but what it really is. Unless of course they wanted a war!

        • Submitted by Curtis Senker on 12/02/2017 - 09:31 am.

          Working around the rules is what turned the 10th amendment inside out.

          We have the Supreme Court to interpret the constitution. Imperfect tool that they are, sometimes, they are still better than allowing politicians make up their own interpretations according to the direction the winds of popular culture might be blowing.

          Amending the constitution has always been a difficult task, and for good reason. One has to convince 2/3rd of the states of the wisdom of an amendment. In today’s America, that is well neigh impossible; I for one am glad of that.

  5. Submitted by Ilya Gutman on 11/30/2017 - 09:37 pm.

    The Constitution is not a suicidal pact. When it was written, terrorism didn’t exist and neither did planes, missiles, drones, and nukes. Everything was slow then, including wars, and everything was simple then, including nation-states, the only ones who possessed armies to attack the US; so there was no problem with Congress declaring a war. Life is so much different now that waiting for Congress to declare a war every time there is a bad situation across the globe would be suicidal. So it is easy to interpret the Constitution in a way that declaration of war is indeed required for wars between the nations – the way its writers definitely meant – but in other cases it is not required. No Constitution change is required then…

    On the other hand, did Congress issue a declaration for Barbary wars?

    • Submitted by RB Holbrook on 12/01/2017 - 11:03 am.

      Declarations of War

      “On the other hand, did Congress issue a declaration for Barbary wars?” No. There have been only five occasions in which Congress issued a declaration of war. The first was in 1812, and there wouldn’t be another one until the declaration against Mexico in 1846, and then, the one against Spain in 1898.

      At the time the Constitution was drafted, there was a split of opinion about the necessity of a declaration of war. Chancellor Kent, writing a few years after ratification, did not deem a formal declaration to the enemy to be necessary, but some formal announcement of hostilities was required for domestic audiences, and for neutral countries.

      • Submitted by Ilya Gutman on 12/01/2017 - 08:41 pm.

        Thank you, that is what I suspected. So how is it different from what presidents are doing now?

        • Submitted by RB Holbrook on 12/04/2017 - 09:16 am.

          The difference is that our foreign military adventures now last far longer than the ones in the past. Prior to the Korean War, the periods of active fighting were relatively short, although they often were followed by relatively long periods of occupation (the Banana Wars, for example).

          • Submitted by Ilya Gutman on 12/04/2017 - 09:53 pm.

            No one ever knows how long a military operation would last and I am sure in most cases the hope is that it would be short… So as I said, there is no difference between Barbary Wars and current operations in different parts of the world.

            • Submitted by RB Holbrook on 12/05/2017 - 04:30 pm.


              I agree that a formal declaration of war probably is not necessary for military action overseas. I do think, however, that there should be close Congressional oversight over those actions, even if it doesn’t amount to a formal declaration.

              • Submitted by Ilya Gutman on 12/05/2017 - 10:03 pm.

                And I agree that there should be Congressional oversight over prolonged military operations (and I think there is to a certain degree). However, I see two problems with that. First, Congress may not want to touch some thorny issues which will leave the President to make a decision. And second (or maybe even first), I am afraid that partisanship will get in the way of making a rational and logical decision which, quite possible, will again leave things up to the President. Plus, of course, do we want the entire Congress to know all the secret information the President makes a decision based upon?

                • Submitted by RB Holbrook on 12/06/2017 - 09:17 am.

                  Features, Not Bugs

                  I like to think that launching a military venture–even one of limited duration–should be difficult.

                  “Plus, of course, do we want the entire Congress to know all the secret information the President makes a decision based upon?” If the decision is to launch an overt attack, I would say we generally do. There are situations when this would not be so, or where the information should be made public only after the fact, but these situations would be limited ones.

                  • Submitted by Ilya Gutman on 12/06/2017 - 10:08 pm.

                    “I like to think that launching a military venture–even one of limited duration–should be difficult.” Maybe but the problem is that some decisions must be made very quickly.

                    “If the decision is to launch an overt attack, I would say we generally do.” I don’t know. I would say that if there is anything we have to trust government (and I mean executive branch because Presidents usually have advisers) to do it is this kind of stuff because they know things we do not know and don’t want to know. If we can’t trust the government with this kind of decisions, it doesn’t make sense to trust with anything else.

  6. Submitted by Wes Davey on 12/01/2017 - 08:05 am.

    Thank you!

    One of the few things I agree with Trump on is that the military is broken – not the servicemembers who do the everyday work, but the higher echelons of the brass found wandering the halls of the Pentagon (as Col. David Hackworth described them, the “perfumed princes”).

    Giving these flag officers the benefit of the doubt, individually they are decent people. Collectively, though, they are a mess – a group so far gone astray that WW2 Generals of the Army George C. Marshall and Dwight D. Eisenhower would cringe in disbelief.

    Our country has been involved in two significant wars and numerous lesser wars for too long, yet the Pentagon leaders (and the legislative and executive branches) have been unable to actually “win” either war. In the words of USMA graduate and Afghanistan veteran Erik Edstrom, “a coalition of the most powerful armies on Earth led by the United States — supposedly with the support of most Afghans — hasn’t been able to get rid of a few thousand ragtag Taliban fighters.”

    But endless wars are off the radar of most Americans because they have no connection to the military – no son, daughter, or spouse serving. Those who do serve are deployed to wars we should not be involved in or which we have no hope of winning (in Pentagon speak, “generational wars”), not to mention the 170 some other countries where Americans serve, including the legal abomination that is Guantanamo (“Gitmo”).

    The Pentagon brass collectively don’t seem to care, as long as the stars keep coming for their shoulder pads: go to Afghanistan for a year and get a star, do a tour in AFRICOM and get another star…it never stops. They think up ways to keep the stars coming, and then turn all those promotions into lucrative positions on corporate boards upon retirement – where they figure out more ways to put our country further in debt with more military fiscal boondoggles.

    Thank you for this article Eric and keep on writing – you have a voice most of us don’t have.

  7. Submitted by Patrick Tice on 12/02/2017 - 10:35 am.

    How about paying for wars?

    Financing wars of any kind should be a mandated by a Constitutional amendment that specifically names a “war tax”. These endless wars, whatever we call them, are money pits and should not be paid for by “borrowing” from Social Security, nor should they be invisible to the taxpaying public. Most of them in my lifetime have been either completely ineffective or outright losses. Yet they go on and on, bleeding us of lives and resources while infrastructure and social needs here go unaddressed.

  8. Submitted by Karen Sandness on 12/03/2017 - 10:45 am.

    Our military policy is broken in several ways

    1. Even the most fervent deficit hawks make an exception for war: military operations get a blank check, and as in the case of the Iraq War, contractors are granted multi-billion-dollar no-bid contracts without hesitation. The funding is granted without question, with few in Congress stopping to ask if the war in question even makes sense.

    Universal health care? A modernized infrastructure? “We can’t afford it! We’ll turn into Spain or Greece!”

    War? “Sure. How much do you want?”


    2. The wars are fought almost entirely by young people who have no realistic economic alternatives–those from dying rural and rust belt communities, those from the inner city. The children of the people who want the wars rarely see combat or even any kind of military service. This makes it too easy for presidents, members of Congress, and White House staff members to support wars.

    3. The United States government as a whole–and this is true whether the Republicans or the Democrats are in charge–suffers from the delusion that it knows how to fix other countries.
    This is incredible arrogance for a country that is growing ever more dysfunctional and seems unable to stop the deterioration.

    My suggestions, all of which are unlikely to be enacted, but here goes:

    1. All overseas military action MUST be approved by a 2/3 vote of Congress and must have a specific, non-borrowed funding source, i.e. a specific tax earmarked for it.

    2. Such a declaration of war should trigger an immediate, no-exceptions draft of all persons ages 18-25, starting with the age-appropriate children, grandchildren, and first-degree nieces and nephews of the president, members of Congress, and Cabinet members. If these people are not willing to put their own children in harm’s way (as elected officials were during World War II, when the nearly everyone in the federal government had a relative or two in the armed forces), then the threat to “national security” (a phrase that means whatever the speaker chooses it to mean) cannot be all that grave.

    3. Everyone in the U.S., but especially our government officials, needs to take self-determination seriously. If another country wants to experiment with a different economic or political system, that is their business. If they end up with a dictator, that is their problem, as long as said dictator is not invading other countries. At the same time, the U.S. should not actively support dictators (case in point, Mobutu Sese Seko of the country formerly known as Zaire) simply because they claim to be the enemies of our enemies.

    As my mother said when she explained why she didn’t interfere in my or my brothers’ romantic relationships, even some fairly disastrous ones, “They could always find someone worse.”

    Overthrow Saddam Hussein and get a free playground for ISIS. Overthrow Gaddafi, and get openly practiced slavery. Overthrow Salvador Allende (who did not imprison or kill political dissidents) and get 30 years of Pinochet (who did). Thwart the Soviets’ efforts to support a Marxist government in Afghanistan and get the Taliban.

    Germany and Japan were the two exceptions, mostly because they already had a history of and the remaining skeleton of parliamentary democracy when they were conquered.

    Finally, this nation needs to stop equating patriotism with militarism. You are not “serving your country” if you fight in a war that only makes matters worse or a war fought strictly to enrich American business interests.

  9. Submitted by Sandra Marks on 12/04/2017 - 09:25 am.

    There’s only one reason we have perpetual war…

    Follow the money–who benefits? Remember Halliburton and other defense contractors?

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