Somewhere hidden in a White House file cabinet, a secret memo with the details of the Trump administration’s interpretation of his legal authority to wage war is stashed away. Now, Senator Tim Kaine (D-VA) is demanding that the administration let the memo see the light of day, according to a report by NBC News.
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Senator Kaine, in his capacity as a member of the Armed Services and the Foreign Relations committees, requested the long-sequestered memo in a letter to Secretary of State Rex Tillerson.
The President’s powers as Commander-In-Chief as outlined in the Constitution do not allow him to unilaterally declare war. Only Congress is given the power to officially authorize any type of military intervention. a power that is augmented by their budgetary control of military spending.
Yet throughout the years, Presidents have begun military actions without express Congressional consent including the Korean War, the Vietnam War, Operation Desert Storm, the Afghanistan War of 2001 and the Iraq War of 2002.
Trump has also engaged in armed conflict without the authority of Congress, most notably when he ordered airstrikes in Syria after President Bashar al-Assad attacked his own citizens with chemical weapons despite worldwide sanctions and a pledge to destroy their stock of chemical armaments.
With Trump’s bellicose tweets towards North Korea, Senator Kaine is worried about what might happen if Congress doesn’t reassert its Constitutional authority over committing troops to fight.
While the Constitution does not expressly grant the President additional powers in times of national emergency, presidents since Lincoln have used states of emergency to take action outside their specifically granted constitutional authority.
While these actions have been challenged in court, the Supreme Court has been inconsistent in its rulings, leaving the legal basis for presidential initiation of hostilities somewhat murky. Hence the need for clarity in what a President understands his authorities to be.
“The fact that there is a lengthy memo with a more detailed legal justification that has not been shared with Congress, or the American public, is unacceptable,” Kaine said in the letter to Tillerson, obtained by NBC News.
“I am also concerned that this legal justification may now become precedent for additional executive unilateral military action, including this week’s U.S. airstrikes in Syria against pro-Assad forces or even an extremely risky ‘bloody nose’ strike against North Korea,” Kaine wrote.
Kaine’s letter comes in the immediate aftermath of U.S.-led air and artillery strikes against pro-regime forces in Syria this week, killing an estimated 100 pro-Assad soldiers. This latest action and last year’s strike “raises serious questions about our continued presence in Syria,” Kaine said.
It’s not only Senator Kaine who is concerned about a rogue administration blustering its way into a nuclear war. With Trump’s call for an authoritarian-style military parade, non-governmental groups are equally concerned.
“Unless Donald Trump goes to Congress before starting a new war, the real bloody nose is going to be the American Constitution,” said Allison Murphy, a former member of President Obama’s White House Counsel’s office and now counsel at Protect Democracy.
“Congress needs to demand the secret Syria memo when the administration is threatening to use force around the world without authority,” Murphy said, adding that the American people deserve to see it.
So far the administration has only shared a summary of the memo which Kaine has said indicates “would completely wipe out Congress’s power (to declare war) under Article I” of the Constitution.
With all current military activity in Afghanistan and the Middle East operating under an “authorization to use military force” (AUMF) bill passed by Congress after the terrorist attacks of September 11, 2001, the scope of actions has gone far beyond the Al Queda targets specified in the original bill to expand to ISIS and basically any terror organization that the administration decides to attack.
Many in Congress are calling for a new AUMF bill so that the parameters of authorised conflicts are explicitly approved by the proper branch of government. Until the Trump administration releases the document outlining its own understanding of the current situation, however, no progress is expected in negotiating the terms of a new AUMF.