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The United States has had thousands of troops in Afghanistan without a formal declaration of war. President Trump has recently ordered a large number of them out of that country, presumably to return home. The Washington Post among others has critiqued the action in supposed "news" stories and characterized this action as a pull-out from Syria. Trump's action has been criticized by political opponents domestically and by some US allies. But under the constitution only the US Congress can declare war.

Instead of a declaration of war, joint resolution of congress passed over seventeen years ago, known as the Authorization for Use of Military Force (AUMF), Public Law 107-40. is raised. Previous US administrations (including those of Trump's opponents and critics) have used the AUMF to justify a US military presence in over a dozen countries for over a seventeen years.

The AUMF was passed shortly after the 9/11 attacks, without clear knowledge of the forces behind those attacks. As reported by Business Insider congress was considering withdrawing the AUMF in 2017, which certainly would have clarified the present situation.

Many wonder if AUMF is sufficient to justify continued risk to US military forces and involvement in the conflict in Afghanistan and Syria. It seems that congress, rather than criticizing actions of the commander-in-chief to withdraw forces could either withdraw the AUMF or pass a declaration of war to encourage the president to take further action in Afghanistan.

Who would congress logically declare war against, or alternatively why haven't they withdrawn the AUMF? Have any recent recorded votes in congress been held?


Criticism of the AUMF

According to wikipedia, an initial draft of the AUMF granted the president authorization to *"to deter and preempt any future acts of terrorism or aggression against the United States."* It states that this language was was removed before passage so as not to grant "a blank check to go anywhere, anytime, against anyone the Bush administration or any subsequent administration deemed capable of carrying out an attack" and the language was removed. Wikipedia cites a copyrighted LexisNexis article.

Could congress declare war against the Taliban?

I believe the question is related to the Law of War and jus ad bellum which deals with acceptable justifications for war.

Historically, a declaration of war doesn't necessarily call for immediate hostilities. For example Manuel Noriega of Panama declared war on the United States. While the American administration questioned his authority to invoke the will of the people of panama, it lead to Operation Just Cause to remove Noriega with a minimum of harm to the people of Panama. The watershed moment in this seems to have been captured in Global Media Perspectives on the Crisis in Panama in quoting from a speech to the nation made by George H. W. Bush which explained (20 December 1989), saying in part:

"Last Friday, Noriega declared his military dictatorship to be in a state of war with the United States and publicly threatened the lives of Americans in Panama. The very next day, forces under his command shot and killed an unarmed American serviceman; wounded another; arrested and brutally beat a third American serviceman; and then brutally interrogated his wife, threatening her with sexual abuse. That was enough."

Another example, a number of countries in the middle east have had (for a long period of time) a declared war against Israel, while at the same time questioning Israel's right to exist and yet did not attack constantly. If those Muslim majority countries can do it to try to get what they want, it only seems fair that the U.S. congress might do so.

Duties of congress vs. political correctness

It seems to me that individual members of congress have a duty to declare themselves in or out on the topic of use of force in Afghanistan. The President of course as commander-in-chief can choose how to prosecute a war.

Is it a matter of political correctness that the members of congress don't want to express themselves, weighing the risks of further conflict inherent in either approach? In other words, is the Anything But Trump crowd trying to snipe at Trump's action to withdraw troops without providing a clear indication they want further use of military force?

To further illustrate, consider the major media headline Taliban greets Pentagon's withdrawal of troops from Afghanistan with cries of victory. The article is so selective, and ignores the fact US allies in the area (like Pakistan) have praised the withdrawal. NBC's story is not news, it's biased opinion; it cites only a "senior Taliban commander". Put a name to him and tell me where he is so I can consider the source. Compare NBC with the less biased story story from French agency AFP: Pakistan says US troop withdrawal 'step forward' in Afghan peace effort It seems like I've got to go outside the country to avoid the media's bias.

I'm simply suggesting that if Congress wants the Taliban defeated (as opposed to ISIS, Syria, or Afghanistan), it needs to say so in the strongest language it can, which would be a formal declaration of war. Alternatively, if congress doesn't want American lives put at risk to defeat the Taliban, congress should join Pakistan in recognizing the troop withdrawal is a step forward toward peace, and withdraw the AUMF.

The one thing I can't abide is putting Americans in harm's way outside the US with one hand tied behind their back. Militaries are organized to fight wars, not police other countries.

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    This question reads more like an avenue to state personal opinions about how the United States should manage the war in Afghanistan than an actual question about politics and political processes. Remember that questions which are too "ranty" often get downvoted and closed as "primary purpose is to promote or discredit a political cause". – Philipp Dec 22 '18 at 20:35
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    I've down voted this question because it inserted much nonsense, without once mentioning the Authorized Use of Military Force that has been leaned on by both the Legislature and Executive to justify military involvement in the middle east. – Drunk Cynic Dec 28 '18 at 22:12
  • This question is being discussed on meta. – Philipp Dec 30 '18 at 15:54
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In short,

  1. there are numerous difficulties with issuing a formal declaration of war
  2. the situation in Afghanistan has been authorized by a previous congress
  3. the current members of congress have no obligation to take any particular position, if any, on the topic.

As suggested in the other answer, the Taliban is not considered by the United States to be a nation-state. It is considered to be some form of hostile organization. Historically, when the United States has had to engage in hostilities with such organizations it does not recognize as states, it has refrained from issuing declarations of war. Although it does not appear to have ever been made explicit, declarations of war seem to be reserved for entering into a formal "state of war" under international law, a situation which can only exist between nation states. The United States instead uses something called "authorizations for the use of force", quoting here:

Justice Chase, more simply, stated: “Congress is empowered to declare a general war, or congress may wage a limited war; limited in place, in objects, and in time.”77

Thus, at least in the 18th and 19th centuries, authorizations for the use of force were understood to be included within Congress’s power to declare war and to have narrower legal consequences than declarations of war. Declarations were reserved for general war against particular countries and empowered the President “to use the whole land and naval force of the United States” (United Kingdom in 1812), “to employ the militia, naval, and military forces of the United States” (Mexico in 1846), or “to use the entire land and naval forces of the United States” (Spain in 1898) to prosecute the war. Authorizations, in contrast, allowed the President to use the American navy against the vessels of France, the Bey of Tripoli, and the Dey of Algiers, or against piracy generally.

In modern times, while such authorizations have become substantially broad, the legal consequences both domestically and under international law are quite different from a formal declaration of war. It is also unclear under international law if the United States could even legally declare war if it were to consider the Taliban a state without running afoul of certain international obligations: (from the same source as above)

Whether this traditional understanding of war and of the effect of a declaration of war continues to be viable is a matter of considerable dispute among scholars. The right of a state to initiate war, many contend, has been outlawed by such international agreements as the Kellogg-Briand Peace Pact and the Charter of the United Nations. In the Kellogg-Briand Peace Pact,61 for instance, the Parties stated that they “condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.”62 After World War II the Nuremberg Tribunal gave teeth to this commitment by ruling that the Pact rendered aggressive war illegal under international law and makes those who plan and wage such a war guilty of a crime.63 The Charter of the United Nations, in turn, states one of its purposes to be “to save succeeding generations from the scourge of war,” and it requires its Members “to refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.”64 Moreover, it provides for a system of collective security through the Security Council as the primary means of maintaining or restoring international peace and security.65 Both instruments, it is contended, recognize that the concept of war as a legal right of states, except in self-defense,66 has been superseded. (The United States, of course, is a Party not only to the Charter but also to the Pact, and it still regards the latter as continuing to be in force.67) Whether the traditional concept of war remains valid has been further complicated by the increasing participation in armed conflict of non-State actors such as insurgents, freedom fighters, and terrorists.

So not only would declaring war create a situation of affording a form of legitimacy to any government the Taliban would seek to establish in its own name, it would also possibly create a situation where members of the United States government became international war criminals.

The number of resulting entanglements both domestically and internationally that result from declaring war have thus created the circumstance where formal declarations of war have fallen into disuse, as these situations are better left avoided. It would certainly be of little benefit to anyone to simply declare war for the mere sake of using more dramatic "strong" language.

The situation in Afghanistan has been authorized under "Senate Joint Resolution 23" aka "PL 107-40" in 2001 in response to the 9/11 attacks. This has remained the authorization for the continued action in Afghanistan to the present day. It was formally approved by both the Senate and the House of Representatives and signed by President George W. Bush.

Additionally:

A notable feature of P.L. 107-40 is that, unlike all other major legislation authorizing the use of military force by the President, this joint resolution authorizes military force against not only nations but also organizations and persons linked to the September 11, 2001, attacks on the United States. This authorization of military action against organizations and persons is unprecedented in American history, with the scope of its reach yet to be determined.

and

The Bush Administration interpreted P.L. 107-40 broadly, to confirm the President’s authority as Commander-in-Chief to conduct antiterrorism operations anywhere in the world, including within the United States.40 In 2004, the Supreme Court affirmed the President’s powers to detain “enemy combatants” captured in Afghanistan as part of the necessary force authorized by Congress, but found that detainees could challenge their detention in federal court.41 In light of the Supreme Court decisions, the Bush Administration interpreted the joint resolution to authorize any measures that can be characterized as fundamental incidents of the conduct of war, even where such measures are otherwise prohibited by statute (at least so long as the statute in question contemplates a statutory exception). Thus, the Administration cited the joint resolution to support the President’s power to detain persons he has deemed to be “enemy combatants” (whether citizens or aliens and without regard to the location or circumstances of their capture)42 and to conduct electronic surveillance of communications within the United States without following the procedures prescribed in FISA.43

So it's fair to say that the Congressional authorization for the situation in Afghanistan is not merely something that was given, it was also something that was unprecedented in the degree and scope of authorization that was given.

Although the members of congress and also the President have since changed, the situation in Afghanistan has still been actually authorized by Congress formally and legally, regardless of whether you feel that the current members Congress has found some kind of loophole by not having to have signed off on it.

The situation in Afghanistan is unique in that it is the longest ever military engagement undertaken by the United States, and so it isn't surprising that such unique political situations can arise where the current congress can criticize the president's handling of an action explicitly authorized and endorsed by a previous congress.

  • Thanks. I've updated the question substantially, to include reference to the AUMF. After these updates, your answer seems obsolete, perhaps you can simplify and address the question: Who would congress logically declare war against, or alternatively why haven't they withdrawn the AUMF? Have any recent votes been held? – Burt_Harris Dec 30 '18 at 14:49
  • I think the point of my answer is that Congress isn't about to declare war on anybody. Issuing a declaration of war creates numerous domestic and international headaches and could open up members of Congress and/or the President to being charged in an international war crimes court in the same manner as in the post WWII Nuremberg trials. Whether or not that would actually happen is a valid question, but there's really no good reason to take on that risk. If Congress wants the Taliban defeated, the present legal situation is enough to support that position. They don't need to do anything else. – magnus.orion Dec 31 '18 at 19:29
  • So the answer to why they haven't withdrawn the AUMF is likely that the US is currently engaged in 12 countries, and as far as international politics are concerned, making sudden and dramatic changes is usually a bad move. No drama is almost always the preferred state of affairs. It's fair to say that the AUMF is being used so broadly that no one actually is fully cognizant of all the details of everything it is justifying, so the consequences of ending it are extremely unpredictable, and therefore, carry considerable risk. Even the end that was considered gave a 240 day phase out period. – magnus.orion Dec 31 '18 at 19:35
  • OK, but wouldn't you consider being engaged in the exercise of force in 12 countries just the opposite of "no drama"? I'm not actually saying AUMF should be revoked, but such authorization should be renewed and clarified instead of depending the 9/11 based authorization alone. – Burt_Harris Jan 5 at 2:32
  • Well, making any dramatic changes is what qualifies as drama. Now that we're there, we're expected to stay there for a very long time or until we complete all of our objectives or give everyone even remotely connected notice that we've given up on those objectives and give them a timetable to let them prepare. Sudden, dramatic decisions are the stuff that literally kills large organizations, even though they appear "sexy" and "exciting" to people outside. If its military, it probably doesn't just kill organizations, it also probably gets actual people killed too, so its doubly bad. – magnus.orion Jan 5 at 7:53
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From a legal and constitutional perspective, an "Authorization for Use of Military Force" is simply another name for a "Declaration of War", just as a "Surface Combatant" is another name for a warship, and the "Department of Defense" is another name for what used to be called the "Department of War". Wars authorized by an Authorization for Use of Military Force are declared wars.

Furthermore, Congressional passage of an AUMF or Declaration of War isn't the end of the story. Congress must also annually assent to ongoing conduct of any military action in appropriations bills to fund those military operations. So, the notion that any sustained military operation has been conducted without Congressional authorization is really inaccurate.

  • This seems interesting. I certainly don't dispute your points about DoD and Surface Combatants. Can you point to any references supporting that assertion that AUMF is equivalent to a Declaration of War? – Burt_Harris Jan 5 at 2:39
  • Would you assert that both Obama and Trump were/are wartime presidents? – Burt_Harris Jan 5 at 2:47
  • @Burt_Harris I would assert that both of them were Presidents at times that Declared Wars are in progress and that they have exercised war powers in connection with those Declared Wars. A "wartime President" is not well defined. Arguably it includes only Presidents during time periods when a war was the dominant national consideration. – ohwilleke Jan 7 at 3:29
  • The U.S. military refers to the Indian Wars, the Korean War, Vietnam War, Gulf War and Iraq War as wars for purposes including historical purposes, statistical purposes, classifying which vets have wartime service, and appropriations purposes. None them them were authorized by a piece of legislation called a Declaration of War. – ohwilleke Jan 7 at 3:31
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Afghanistan is normally considered an ally (if not a puppet) of the United States. It would make absolutely no sense to the US to declare war against Afghanistan.

The Taliban are not a country, or a State, or a polity of any kind. I don't think it is usual to "declare war" against something that isn't a formal polity (it would rather give the Taliban some dignity that not many people, and certainly not the US government, are comfortable with).

In practice, the Congress' power to declare war is obsolete. The Executive does as it sees fit, and the Congress is usually unable/unwilling to call the Executive on the issue. Korea, Vietnam, Iraq I and II, and Afghanistan were all wars waged without a formal declaration. Further, the Congress' power to declare war is merely authorizative; in theory, the Executive cannot wage war without such authorization. But a declaration of such kind does by no means make mandatory for the Executive to deploy troops and engage in actual fighting.

  • What credentials do you have to declare a provision of the U.S. constitution as obsolete? I do agree a declaration of war does not force action by a president, it authorizes it. See added reference to the invasion of Panama. – Burt_Harris Dec 22 '18 at 22:48
  • @Burt_Harris - the fact that the US Executive wages wars without Congressional approval shows it is, never mind my credentials or lack thereof. – Luís Henrique Dec 22 '18 at 22:50
  • I would agree that congressional declaration of war is obsolete under one circumstance, global thermonuclear war. The war powers act I believe makes provisions for that without removing the congressional power to declare war. – Burt_Harris Dec 22 '18 at 22:50
  • OK, back up your assertion with references. – Burt_Harris Dec 22 '18 at 22:51
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    @LuísHenrique Those wars were fought without Congressional declarations of war, not without Congressional approval. There's a difference. – David Thornley Dec 26 '18 at 22:14

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