“The Constitutional Questions of Combat” – The Sunday Political Brunch -- January 12, 2020


CHARLESTON, W. Va. – There has been a lot of clamor and controversy this week about President Trump over a U.S. drone strike that killed Iranian military leader Major General Qassem Soleimani. You hear people shout that it’s illegal and unconstitutional, and then there are those who say the president was on solid legal ground and had moral justification. This is not a new argument in the U.S. where the Constitution provides “checks and balances,” but not always clear-cut guidance. Let’s “brunch” on that this week.

“Presidential Powers” – Article II, Section 2 of the Constitution says the following: “The President shall be 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." So, ultimately, he’s the boss, but what is the extent of those powers and authorities? Clearly, the framers - in their brilliance, or desire for vagueness - left room for interpretation and adaptation over the years.

“Congressional Powers” – As with so many thinks in the U.S. Constitution, there's a 'point-counterpoint" strategy that sets up the separation of powers. In short, there are built in conflicts, as part of the checks and balances. And the tensions between the executive and legislative branches often have to be settled by the judicial branch. Article I, Section 8, Clause 11 of the Constitution states: [The Congress shall have Power ...] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

“So, Who’s the Boss?” – This question has been argued about for years, and there still is no consensus or agreement. I think the best assessment is that the president has power to direct military action in the immediate, short-term, i.e. in response to a terrorist attack, while Congress has a broader, more powerful voice if we are talking about a potentially long-term conflict, with unclear intentions, such as the Vietnam War.

“The War Powers Resolution” – The Vietnam War is clearly the tipping point on the debate over who has the Constitutional authority to direct military action. Sometimes it’s abundantly clear: Japan attacks Pearl Harbor, and it declares war on the United States, as does Germany. Certainly, as Commander-in-Chief, President Roosevelt could order a military strike, while he awaited an official Declaration of War from Congress. Vietnam was not Pearl Harbor, and therefore not as clear in direction and goal.

“Let’s Share the Responsibility” – Vietnam went on for years, from President Eisenhower in the 1950s through President Ford in the 1970s. There was considerable animosity – especially aimed at President Johnson – for carrying on a “war” that was never declared by Congress. The War Powers Resolution passed by Congress in 1973 stated, “The War Powers Resolution requires the president to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30-day withdrawal period, without a congressional authorization for use of military force (AUMF) or a declaration of war by the United States,” (which only Congress can pass).

“Targeting Foreign Leaders” – In 1976, President Gerald Ford signed Executive Order # 11905 which stated, "No employee of the United States Government shall engage in, or conspire to engage in, political assassination." The administration of George W. Bush, with Congressional blessing, essentially rescinded that Executive Order.

“Bush II and the 9-11 Changes” – The September 11, 2001 seemingly changed the ground rules in a lot of ways and Congress passed a very generic joint resolution authorizing President George W. Bush (or any president) to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” One could argue that gave President Obama the authority to have Osama bin Laden killed in Pakistan in 2011, and now President Trump ordering the targeted killing of Soleimani.

“The Hodge-Podge of Rules” – What we have is a moving target of rules, and I don’t mean to use that phrase as a pun. We have Constitutional language that gives both a president and Congress rather vague and overlapping (and yes, even sometimes conflicting authority). Then we have Congressional Resolutions and Executive Orders that, while attempting to clarify the situation, muddy the waters further. My analysis is that collectively these rules give any president the authority to make a short-term strike against a bin Laden or Soleimani when time is of the essence. When it is likely to be a more long-term situation such as a large military intervention or war, then more authority falls to Congress. I haven’t even considered what broader international policies such as the Geneva Conventions have to say, because for this discussion I am just examining internal U.S. policy.

Do you think what President Trump did in ordering the killing of the Iraqi General was illegal or unconstitutional? Or was he on point? Just click the comment button and let us know your thoughts!

© 2020, Mark Curtis Media, LLC

Mark Curtis, Ed.D., is Chief Political Reporter for the five Nexstar Media TV stations serving West Virginia, it’s five neighboring states and most of the Washington, D.C. media market. He is a National Contributing Political Writer for the White House Patch at www.Patch.com

Photo courtesy: Getty Images

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