04/19/17 – Gene Healy on the weak legal justification for Trump’s ‘drive-by Tomahawking’ in Syria – The Scott Horton Show

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All right, you guys, Scott Horton Show.
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All right, introducing Gene Healy, vice president of the Cato Institute, and he's got a blog here at the Cato at Liberty blog, just Cato.org slash blog.
And it's called Weak Legal Pretext for Trump's Drive-by Tomahawking.
Great figure of speech there.
I saw it praised in numerous places, actually, in your title there.
Welcome to the show, Gene.
How are you doing?
Hey, thanks for having me again.
Yeah, good to have you on.
You know what?
Everybody in the world is wrong about this except you, I think.
Is it because you're the only person in American history since the early 70s who's actually ever read the War Powers Act rather than just repeating what they heard some idiot say about it?
Well, you know, it's actually, you know, in the legal academy and the constitutional scholars who study war powers, what I'm saying is not controversial.
You know, it's sort of the consensus position.
You know, some people may say, well, we've evolved past that and adopt a living constitution sort of theory.
But among constitutional scholars, the few people outside of John Yoo and a few associated folks deny that the original understanding of the constitutional allocation of war powers, the Declare War Clause, was that the president did not have the power to order up acts of in any situation that didn't involve, as Madison put it at the Constitutional Convention, repelling sudden attacks.
You know, the president can take defensive acts.
He doesn't have to wait until, you know, we're at, you know, at the city level or something like that to take unilateral action.
But he doesn't get to do drive-by attacks, you know, let alone a seven-month regime change war as Obama did in Libya, simply because he says it's a good idea.
The Constitution requires him to go to Congress, and that's the case with...that's what makes launching a 59 Tomahawks two weeks ago at the Syrian airfield unconstitutional and illegal.
All right.
Now, so a couple of different things here.
We'll get back to the specific War Powers Resolution in just a second, but I wonder what you think about the discrepancy between a congressional declaration of war to start a war versus a congressional authorization to the president to decide whether to launch a war, such as we had with the AUMF in 2001, and especially, I think, was the context for the AUMF of 2002, authorizing the attack against Iraq.
Well, I know there's a lot of sentiment, Rand Paul, some others, for going back to the old-fashioned declaration of war.
Constitutionally, though, there's, you know, you don't need magic words.
Very early on in our history, the Quasi-War with France, we had limited authorizations for use of military force passed by Congress.
The important principle is that the president doesn't get to take offensive action on his own.
Now, I think the folks who would like to go back to declaring wars outright have a point in the sense that the problem with authorizations for the use of military force is, well, as LBJ said about the Gulf of Tonkin Resolution authorizing Vietnam, it was like grandma's night shirt.
It covers everything.
When you get out of the on-off declare war paradigm and into congressional authorizations, there's a lot of room for interpretation by the president.
You know, you saw that with...and a lot of room for ducking and covering by congressmen.
You saw that with the Iraq War Resolution, you know, with congressmen being able to be for it before they were against it and vice versa.
And you've certainly seen it, you know, the most staggering example is the 2001 AUMF passed three days after 9-11 to go after al-Qaeda and the Taliban.
It's now being invoked to go after ISIS, which was excommunicated by al-Qaeda and routinely cuts the heads off of members of al-Qaeda affiliates.
I've seen people invoke the 2001 AUMF to justify going to war against the Assad regime in Syria.
And Assad, you know, is at war with al-Qaeda and ISIS.
So, you know, you sort of got...think past 15 years ago that they're interpreting as allowing future presidents to take every side in a civil war we shouldn't be involved in.
So I don't think legally it makes a difference whether Congress uses magic words in declaring war or passes an authorization, but practically there are some problems when you allow loose language and you allow presidents to claim that, well, as President Obama did and President Trump apparently is willing to do, to claim that, yeah, Congress had a vote, but it was in Congress one vote, one time, 15 years ago, and that means any future president can invoke this authority.
All right, now when you mention the AUMF of 2001 being invoked in this recent missile attack against the Assad regime, that wasn't the Trump administration's position?
No, it's outside commentators, you know, Lindsey Graham and John McCain, the Bobsy twins of American interventionism, sort of suggested that a few days after the attack.
They like to pretend that Assad is behind ISIS.
That's part of their, you know, fun, I guess.
Trump so far has just invoked his alleged powers under Article 2 of the Constitution.
Now that's separate from the War Powers Act, so he hasn't hid behind the War Powers Resolution either.
That was also just commentators, is that right?
No official statement that I've seen, but if he did, it would not have been unusual.
You know, presidents have claimed, suggested, and even the Office of Legal Counsel has sort of suggested in some of their opinions, most recently in the OLC opinion justifying the Libya, the initial Libya intervention, that the 60 to 90 day time limit in the War Powers Resolution, the resolution passed in 1973 over Richard Nixon's veto, that because, you know, the resolution, you know, calls for withdrawal of U.S. forces from hostilities within 60 or if Congress approves 90 days, that it's essentially a free pass for the president to do whatever he wants.
You actually read the War Powers Resolution, and that's not at all what it says.
The War Powers Resolution, you know, section on purposes, it outlines the only areas in which the president has unilateral authority to take military action, and they're pretty consistent with the original understanding of congressional war powers.
President only can introduce U.S. forces into hostilities subject to a declaration of war, statutory authorization, or an emergency, you know, representing a threat to United States persons or forces.
And the War Powers Resolution goes on to underline that point, saying that, you know, nothing in a later section, 8D, I believe, that nothing in the resolution should be interpreted as a grant of power to the president beyond what the Constitution and prior statutory authorizations had already granted.
So there's no legal basis to this notion.
It wasn't as though, you know, in the wake of the waning days of the Vietnam War, the, you know, a war-weary Congress decided, hey, why don't we give the president two or three months to get us into wars?
This is the reaction to the secret bombing of Cambodia.
And as you said, they passed it over Nixon's dead body.
I mean, over Nixon's veto with a two-thirds supermajority in both houses of Congress.
And it was to give him an extraordinarily broad grant of new power that you can go ahead and do this from now on?
That doesn't make any sense at all.
No.
And the Cambodia backdrop, too, really speaks to how ridiculous the Obama administration's position on the War Powers Resolution was.
You remember in Libya, after the 60-day clock was ticking, you know, they figured out that our NATO allies couldn't actually carry out the rest of the mission without U.S. involvement.
And Obama shopped around for a legal opinion that he got from the State Department saying that if you're bombing somebody, but it's from a distance and they can't easily hit you back, then you haven't engaged in hostilities under the meaning of the War Powers Resolution, which, you know, that was the exact situation in Cambodia.
You know, it wasn't as though a lot of American airmen were at risk.
But, you know, outside of the violation, the clear violation of plain language, you know, I mean, dropping bombs on people is pretty hostile.
I think it counts as hostilities.
You know, in the historical context, this just makes no sense.
Well, that was unique.
Was that unique?
When in the summer of 2011, they had two resolutions, one to authorize and fund the war and another to deauthorize it and demand that it end.
And they both failed.
And then the war continued for another few months anyway, until Gaddafi was finally lynched.
Gene, has that ever happened before?
Well, there's this, if you want to call it precedent, it's basically what the president could get away with.
Obama wasn't the first president to go beyond the 60 day limits.
Clinton did it in Kosovo in 1999.
But in Kosovo, it was unprecedented in the sense that Congress did pass a specific funding for operations in Kosovo.
In the Libya case, there wasn't even that big a relief.
They rejected it and Obama just found the money from overseas contingency operations.
It's another example of the dangers of our over swollen Pentagon, you can shift around some accounts and find funding for a war.
So, yeah, Obama, the peace president, the so-called reluctant warrior, was responsible for violating the War Powers Resolution in new and interesting ways.
Well, now, so are we back to Dick Cheney, David Addington level danger here if the Trump administration is saying, ah, nuts to the War Powers Resolution, that doesn't matter anyway, he's the commander in chief, he can do whatever he wants?
He's definitely saying the latter.
The War Powers Resolution, sadly, was more or less a dead letter before Obama and Clinton got to it and made it even more flexible.
But from what we can see in early days of the Trump administration, this looks like it.
Obama's shtick was to try not to rely on inherent powers and Article Two powers to torture prior statutory authorizations into justification.
That's how he ends up saying that the AUMF designed to go after al-Qaeda and the Taliban justifies a new war against people that are actually fighting al-Qaeda, you know, 14 years later.
But what you see now, Trump, and this is as recently as Monday, Sean Spicer was asked, Sean Spicer was asked, you know, is the president ready to go it alone in Korea?
And Spicer said, I think he's going to rely on his Article Two powers for any strike against the North Korean nuclear test.
I think, yeah, it is a little bit back to the John Yoo, Dick Cheney, David Addington school of thought, you know, which in some ways, I don't want to say it's an improvement, it's certainly not, but it's a little refreshing to, instead of these tortured statutory rationalizations and abuses of language, to just have the administration say, I can do what I, you know, we can do what we want, regardless, you know, Congress be damned.
You know, it's, it's not an improvement, but at least it's less of an insult to your intelligence.
Yeah.
Well, so I wonder, I mean, I guess there's not going to be much question about whether the authorization to use military force still counts for the occupation of Afghanistan.
But it seems like when they send however many thousand troops they're about to announce that they're sending back there, that that would raise this issue again of that original AUMF from 2001.
And isn't this kind of ridiculous when, you know, there hadn't been al-Qaeda in Afghanistan in 16 years anyway.
We're just fighting local Pashtun villagers.
Everybody knows that.
Well, I think the lesson of, you know, the original War Powers Resolution and how that came about, unfortunately seems to suggest that things have to get bad before they get better.
And the way we fight war now, from a long distance, from remote control, often in secret with deployments undisclosed.
You know, at one point in the Obama administration, they were trying to, the PolitiFact, my nemesis there, actually did an interesting piece where they're trying to count up the number of countries Obama had bombed compared to Bush.
And they couldn't come up with an exact number because, as they put it, both presidents may have bombed the Philippines.
So a lot of this is happening in secret.
It's not leading to enormous numbers of U.S. body bags.
And therefore, it's not at the front of the public's concerns.
And of course, none of these details are even interesting to the president at all.
He can do what he wants, and it's up for the people who work for him to figure it out, right?
Well, I think what we have to do is get the hosts on Fox and Friends to agree with this, because we know that's one way to get a direct line to the president.
Good luck with that, man.
I hope you can figure out a way to like the same football team as those guys and make friends with them on a Sunday or something.
All right.
Great work, Gene.
Thank you very much, sir.
Yeah, thanks, Scott.
All right, y'all.
That's the great Gene Healy.
He helps run the Cato Institute over there.
Cato.org slash blog for this one.
Weak legal pretext for Trump's drive-by tomahawking.
I'm Scott Horton.
You can find all my stuff at ScottHorton.org and at LibertarianInstitute.org slash Scott Horton Show.
Follow me on Twitter at Scott Horton Show.
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