“We are at war with ISIL.”
This declaration was made at the end of last week by the top spokesman for President Barack Obama, Press Secretary Josh Earnest, and was repeated by Pentagon spokesman John Kirby.
They are powerful people, who speak for the President of the United States, but who are they to declare that the United States is at war?
They aren’t the U.S. Congress. Under the Constitution of the United States of America, Article 1, Section 8, it is Congress, not the President, not the Press Secretary, and not a military spokesman, that has the legal right to declare that the United States is at war. “The Congress shall have Power… To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
There is no declaration of war specifying the Islamic State, formerly known as ISIS or ISIL, as an enemy of the United States. On July 25 of this year, the U.S. House of Representatives passed House Concurrent Resolution 105, which “Prohibits the President from deploying or maintaining U.S. Armed Forces in a sustained combat role in Iraq without specific statutory authorization enacted after the adoption of this concurrent resolution”, or would, if it was also passed by the U.S. Senate. It was not, and so H. Con. Res 105 has no legal authority on its own. However, it adds significant weight to the argument that Congress may not be in support of a new war in Iraq, and reminds us that it is not within the power of the White House to decide who it will wage war against in the name of the entire nation.
On Thursday, U.S. Representatives Raul Grijalva, Keith Ellison, and Barbara Lee introduced House Concurrent Resolution 114, which urges Congress to hold a vote on whether there shall be war against the Islamic State, rather than simply allowing Barack Obama to unconstitutionally seize the power to declare war for himself. H. Con. Res. 114 reads:
“Whereas Congress has a constitutional duty, enshrined in article I, section 8, clause 11 of the United States Constitution, to debate and examine the significant consequences of another multi-year United States military
intervention in the Middle East;
Whereas the War Powers Resolution provides that 60 days after the President informs Congress that he has introduced Armed Forces into an overseas theater, the President “shall terminate any use of United States Armed Forces” unless Congress has authorized such use of the Armed Forces;
Whereas the United States military has engaged in over 100 airstrikes in Iraq since August 8, 2014;
Whereas currently there are over 1,000 United States military personnel deployed in Iraq;
Whereas the United States military has flown surveillance sorties over Syria to collect information on the Islamic State in Iraq and Syria (ISIS);
Whereas the Obama administration has stated that the Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107-243) is obsolete and has supported its repeal;
Whereas the Authorization for Use of Military Force (Public Law 107-40) should not apply to ISIS because ISIS has no operational connection to al Qaeda or the Taliban and is not currently considered an “associated force” of al Qaeda;
Whereas any new authorization for the use of military force should be narrowly tailored and limited;
Whereas ISIS is a violent extremist organization that has terrorized and committed unconscionable atrocities against religious and ethnic minority communities in the course of attempting to create a de-facto state within the borders of Iraq and Syria;
Whereas the threat posed by ISIS requires a robust response from a broad international coalition, with regional partners playing prominent and leading roles;
Whereas Congress should support a comprehensive strategy for defeating ISIS that cuts off access to ISIS supplies and financial resources and isolates extremist elements by addressing the legitimate political grievances and aspirations of local religious and ethnic communities in Iraq and Syria;
Whereas this issue should be immediately referred to and debated by the United Nations Security Council;
Whereas the House of Representatives passed House Concurrent Resolution 105 on July 25, 2014, by a vote of 370-40; and
Whereas House Concurrent Resolution 105 expressed the sense of Congress that the President shall not deploy or maintain United States Armed Forces in a sustained combat role in Iraq without statutory authorization: Now, therefore, be itResolved by the House of Representatives (the Senate concurring), That Congress–
(1) should debate and vote on a statutory authorization for
any sustained United States combat role in Iraq or Syria;
(2) does not support the deployment of ground combat troops
in Iraq or Syria;
(3) should ensure that any such statutory authorization is
narrowly tailored and limited; and
(4) should ensure that any statutory authorization includes
robust reporting requirements.”