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.