Two Cheers for the AUMF

It is month eight of the Golden Age of America, and President Peacemaker is preparing to let slip the dogs of war on Venezuela. The Navy has parked a variety of ships, including an amphibious landing group, outside Venezuelan territorial waters; the Americans blew up an apparent drug-running vessel as a prelude to whatever is coming next. The State Department has designated Nicolas Maduro, the unpleasant character who runs that fine South American shambles by the enlightened principles of the Bolivarian revolution and the late Hugo Chavez, the head of a vast narco-terrorist empire. I would advise Mr. Maduro to sit very still and postpone indefinitely any planned purchases of aluminum tubes.

I hate to be seen carping, but this all has gotten rather silly, hasn’t it? I’m more or less a disappointed Madisonian; I understand that the system is designed so that each component tries to expand its own powers. Nevertheless, it is striking that the administration of Donald Trump, whose campaign rhetoric was built in large part around the criticism of irresponsible foreign interventions, has arrogated broader executive war powers than even the Bush administration in the heyday of the Global War on Terror. The GWOT authorizations for use of military force were expansive and subject to gross abuse, but at least they gave lip service to Congressional supremacy; likewise, the PATRIOT Act and FISA at least based the vast security state apparatus in statutory law. These were bad legislative instruments, by my lights, but at least they reflected aspects of how the republican system ought to work on paper. 

Yet the Trump administration has not seen fit even to gesture in this direction. As of writing, the White House has yet to provide any legal reasoning for the June strikes against Iran’s nuclear sites. Maybe she’s born with it; maybe it’s the 2001 AUMF. We don’t know, and the government doesn’t seem to be in a big hurry to tell us. 

Now the administration is playing semantic games with the word “terrorist,” a favorite pastime in the post-GWOT era. Secretary of State Marco Rubio is braying that Maduro is “NOT the president of Venezuela,” but a drug cartel boss. Fentanyl is the going cover story right now, although Venezuela is not a meaningful participant in the fentanyl trade (unlike, say, Mexico). Call me paranoid, but this looks an awful lot like an effort to justify a war on an actual sovereign nation—admittedly, not a very nice one, and one that does pose real policy difficulties for Washington—by resorting to the executive’s capacious powers to deal with the ill-defined category of “terrorism.” If successful, this would give the Article II branch an even vaster resource for unilaterally engaging in what any reasonable person off the street would call wars. This is fatuous; if successful, it also seems like the end of constitutional limits on presidential war powers.

The Trump administration, for its occasional anti-interventionist rhetoric, does seem to enjoy some drive-by military action. The New York Times last week reported on a 2019 special forces operation in North Korea that apparently concluded with a bang—that is to say, by smoking a boatful of North Korean civilians. (Naturally, the operation also failed to achieve its aim, setting up a device for listening to North Korean government communications.) Perhaps needless to say, Congress was not looped in. The assassination of Qasem Soleimani has been discussed at length elsewhere; once again, Congress (except, perhaps, Lindsey Graham) was not notified. (Although, back then, there was at least a post-hoc appeal to the 2002 AUMF.) Mr. Peace has quite a track record here. I’m told that this is Jacksonianism; that doesn’t seem like much of a recommendation in itself, but I guess opinions vary.

War is in fact serious business; there’s a reason the framers did not make it too easy. But there also seems to be a political liability in running the business this way. The Democrats may someday get their act together, in which case the impeachment circus could well come to town again. A cavalier attitude toward war powers is not unusual in the past 50 years of American politics; declining even to issue a boilerplate justification, however, is novel, and makes the action harder to defend. While it seems seriously unlikely that Trump would be removed (at the moment, even conservative projections suggest the GOP will keep the Senate at midterms), an impeachment would be a distraction and would siphon resources from the administration’s agenda. 

A little more circumspection about stepping on congressional toes may not just be theoretically laudable; it may prove to be useful CYA in the near future, too. And if it resulted in fewer ill-considered military actions, well, that wouldn’t be so bad, would it?