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Does the fact that Article I, Section 8 of the United States Constitution reserves to Congress the authority to “declare war” mean that the president needs congressional approval before using military force? As this Article discusses, there are a range of answers to this question. The Article examines this debate in the context of humanitarian intervention, i.e. military actions taken, not for purposes of conquest, but instead to stop largescale, serious violations of human rights. If the president wishes to use the military for these purposes, should he have more authority under the Constitution to do so? Less? The same? What this Article suggests is that the concerns which drove the Founders to place limits on the President’s war powers, especially the fear that a glory-seeking chief executive would precipitously use the military in order to serve his own desire for fame, are not as serious when it comes to humanitarian intervention. Presidents are unlikely to significantly enhance their short-term popularity or historical legacies by using the military in this way. As a result, there is less reason to fear that they will be incautious in these situations. In addition, it is possible to establish standards by which to judge presidential action in this arena, placing another effective limit on the President. In light of the reduced risks, as well as the terrible costs of inaction in the face of grave human rights crises, we should accept some flexibility for the President to decide to intercede for humanitarian reasons.

Why do governments include parliamentarians in the delegations to international negotiations? Conduct of the diplomatic negotiations is among the most tightly controlled prerogatives of the executive, and executives have been historically dominant in the conduct of foreign policy. This article draws on the participation of members of parliaments in national delegations to the Review Conferences of the Non-Proliferation Treaty over the past 40 years. The emerging patterns show that legitimation through oversight is unlikely to be the reason for participation. Drawing on literature on institutional variation in legislative-executive relations, the data indicate that executives are more interested in co-opting the parliamentarians, in order to make them less opposed to the government's policy.

Why do governments include parliamentarians in the delegations to international negotiations? Conduct of the diplomatic negotiations is among the most tightly controlled prerogatives of the executive, and executives have been historically dominant in the conduct of foreign policy. This article draws on the participation of members of parliaments in national delegations to the Review Conferences of the Non-Proliferation Treaty over the past 40 years. The emerging patterns show that legitimation through oversight is unlikely to be the reason for participation. Drawing on literature on institutional variation in legislative-executive relations, the data indicate that executives are more interested in co-opting the parliamentarians, in order to make them less opposed to the government's policy.

This study of American constitutional theory and practice offers a distinctive perspective on the interminable war powers debate, a view away from formal constitutional settlement and towards a deliberative constitutional politics for war. Contemporary war powers scholarship centers on the question of how the rise of discretionary executive power and receding legislative influence over the use of military force should be constitutionally evaluated and addressed. This dissertation shows that underlying the conventional divide between congressionalist and presidentialist interpretations of the Constitution are competing theories about how such a balance of powers is to be politically constituted that have important implications for the interbranch politics of warmaking. The predominate framing of the war powers debate has been from the vantage point of legal constitutionalism--centering on constitutional interpretation, statutory clarification, and ultimately judicial review to clearly establish the authority over the use of military force. After describing the theoretical promises of the formal entrenchment of the separation of powers, an examination of constitutional practice reveals this approach to be a contemporary construction that has tended to undermine the purposes to which it aspires. The dissertation then turns to consider a more fully political constitutionalism, a conception with roots in the American founding and which has seen a revival in recent scholarly discussions. Political constitutionalism accommodates continual discord over the proper boundaries of institutional authority in war and the inevitability of some executive discretion as inherent and potentially salutary elements of the political order. The analysis shows that the warmaking order that emerges from such a constitutional politics should not entail anything goes, but instead can be judged by the extent the branches engage in recurring interactions that amount to systemic deliberation, a

Controversy continues over the appropriate role that Congress should play in regulating U.S. military operations against foreign entities. U.S. action against Libya reignited consideration of long-standing questions concerning the President s constitutional authority to use military force without congressional authorization, as well as congressional authority to regulate or limit the use of such force. There may be a renewed focus in the 113th Congress on whether or to what extent Congress has the constitutional authority to legislate limits on the President s authority to conduct military operations in Afghanistan, Yemen, Somalia, or other locations. This report begins by discussing constitutional provisions allocating war powers between Congress and the President, and presenting a historical overview of relevant court cases. It considers Congress s constitutional authority to end a military conflict via legislative action; the implications that the War Powers Resolution or the repeal of prior military authorization may have upon the continued use of military force; and other considerations which may inform congressional decisions to limit the use of military force via statutory command or through funding limitations. The report discusses Congress s ability to limit funding for U.S. participation in hostilities, examining relevant court cases and prior measures taken by Congress to restrict military operations, as well as possible alternative avenues to fund these activities in the event that appropriations are cut. The report then provides historical examples of measures that restrict the use of particular personnel, and concludes with a brief analysis of arguments that might be brought to bear on the question of Congress s authority to limit the availability of troops to serve in ongoing military operations. Although not beyond debate, such limitations appear to be within Congress s authority to allocate resources for military operations., CRS Report for Congress

This paper looks at the need to rebalance the use of military force in support of U.S. foreign policy after the expected withdrawal of U.S. troops from combat operations in Afghanistan. It analyzes the need to update grand strategy, recommends adjustments to State Department structure, and identifies issues with current war powers.

Congress has formally declared war only eleven times in U.S. history in five wars, yet authorized the deployment of troops to situations that either involved the use of force or potentially involved the use of force over two hundred times. Though not necessarily true in the 19th century for political reasons, the 20th century has shown that if war requires not . only a whole of government approach, but a whole of nation approach then Congress will formally declare war. If war only requires limited resources then Congress authorizes the action through a resolution or by continued funding. When Congress does declare war it grants sweeping powers to the Executive Branch that threatens the balance of power within the government. Therefore, Congress is very selective in choosing which wars to formally declare.

Two separate but closely related issues confront Congress each time the President introduces armed forces into a situation abroad that conceivably could lead to their involvement in hostilities. One issue concerns the division of war powers between the President and Congress, whether the use of armed forces falls within the purview of the congressional power to declare war and the War Powers Resolution (WPR). The other issue is whether or not Congress concurs in the wisdom of the action. This report does not deal with the substantive merits of using armed forces in specific cases, but rather with congressional authorization for military action, and the application and effectiveness of the WPR. The purpose of the WPR (P.L. 93-148, passed over President Nixon?s veto on November 7, 1973) is to ensure that Congress and the President share in making decisions that may get the United States involved in hostilities. Compliance becomes an issue whenever the President introduces U.S. forces abroad in situations that might be construed as hostilities or imminent hostilities. Criteria for compliance include prior consultation with Congress, fulfillment of the reporting requirements, and congressional authorization. If the President has not complied fully, the issue becomes what action Congress should take to bring about compliance or to influence U.S. policy. A related issue has been congressional authorization of U.N. peacekeeping or other U.N.-sponsored actions., CRS Report for Congress.

This dissertation examines the institutional processes that led a country founded on a grave distrust of standing armies and centralized power to develop and maintain the most powerful military in history. I theorize that, after World War II, the importance of the defense sector of the economy to defense industries, Department of Defense personnel and key members of Congress created strong incentives to perpetuate and expand the U.S. military industry. Using a multi-method approach–including quantitative methods, mapping techniques, archival research and qualitative analysis–I find that overlapping institutional interests encourage policymakers to extend defense procurement expenditures independent of their national security goals. Analysis of an original database demonstrates that economic and political factors encourage military spending in more rural areas with less diverse economies–areas that are disproportionately reliant on the defense dollars that they receive. The extension of defense benefits to more economically dependent constituencies has coincided with policies that systematically reduce the public costs of war, including deficit financing, a growing use of private contractors, and an all-volunteer military. This gives key constituencies a disproportionate stake in the military economy and makes it easier for policymakers to maintain a defense establishment without fear of electoral reprisal. I argue that, as a consequence, expansive defense resources have allowed the president to act with greater independence from Congress. While the hierarchical structure of the executive branch encourages presidents to initiate military and foreign policy–which historically includes neutrality, diplomacy and military engagements–the administration's capacity to direct military actions without ongoing congressional cooperation depends largely on available resources and institutional authority. As long as congressional budgetary authoriza

On October 16, 2002, President Bush signed the Authorization for Use of Military Force against Iraq Resolution of 2002. Since the March 2003 invasion of Iraq, Congress has enacted appropriation bills to fund the continuation of the Iraq war, including military training, reconstruction, and other aid for the government of Iraq. The situation in Iraq has focused attention on whether Congress has the constitutional authority to legislate limits on the President's authority to conduct military operations in Iraq, even though it did not initially provide express limits. Specifically under consideration is whether Congress may, through limitations on appropriations, set a ceiling on the number of soldiers the President may assign to duty in Iraq. In addition, several measures have been introduced calling for the repeal or expiration of the authorization for use of military force (AUMF) against Iraq. It has been suggested that the President's role as Commander in Chief of the Armed Forces provides sufficient authority for his deployment of additional troops, and any efforts on the part of Congress to intervene could represent an unconstitutional violation of separation-of-powers principles. While even proponents of strong executive prerogative in mailers of war appear to concede that it is within Congress's authority to cut off funding entirely for a military operation, it has been suggested that spending measures that restrict but do not end financial support for the war in Iraq would amount to an "constitutional condition." The question may turn on whether the President's proposal is a purely operational decision committed to the President in his role as Commander in Chief, or whether congressional action to prevent the proposal's carrying out is a valid exercise of Congress's authority to allocate resources using its war powers and power of the purse., The original document contains color images.

On October 16, 2002, President Bush signed the Authorization for Use of Military Force against Iraq Resolution of 2002. Since the March 2003 invasion of Iraq, Congress has enacted appropriation bills to fund the continuation of the Iraq war, including military training, reconstruction, and other aid for the government of Iraq. The situation in Iraq has focused attention on whether Congress has the constitutional authority to legislate limits on the President's authority to conduct military operations in Iraq, even though it did not initially provide express limits. Specifically under consideration is whether Congress may, through limitations on appropriations, set a ceiling on the number of soldiers the President may assign to duty in Iraq. This report provides background and discusses constitutional provisions allocating war powers between Congress and the President. It presents an historical overview of relevant court cases followed by some examples of measures enacted by Congress to restrict military operations. The report includes a discussion of possible alternative avenues to fund operations in the event Congress were to restrict appropriations for the war in Iraq. Finally, the report provides a brief analysis of arguments that might be brought to bear on the question of Congress's authority to limit the availability of troops to serve in Iraq, and concludes that, although not beyond debate, such a restriction appears to be within Congress's authority to allocate resources for military operations., CRS Report for Congress. The original document contains color images.

The residence of Constitutional war powers has been defined by the functional execution of war powers, which has been almost entirely that of the executive, not by the interpretation of the original intent of the Framers of the Constitution. The debate on where the Constitutional authority to make war resides has revolved around three distinct interpretations of the Framers' original intent: the supremacy of the executive, the supremacy of the legislature, and the collective judgment of both in making war. The conclusion of World War II marked the last time that Congress formalized a relationship of hostility through a declaration of war. Since then, the introduction of U.S. Armed Forces into hostilities has been done entirely on the prerogatives of the executive. Every post-World War II President has entered U.S. Armed Forces into hostilities, often absent of Congressional participation and occasionally in direct contravention to Congressional desire. Each of these introductions of U.S. Armed Forces into hostilities furthered the war powers debate, which evolved to include the implication of U.S. participation in mutual security arrangements, such as the United Nations and NATO, and the success and resultant popularity of the military action in question. In an effort to protect its participation in war making decisions, Congress enacted legislation, first in the form of amendments to appropriations bills and later with the War Powers Act of 1973. This legislation, though, has had little effect on the functional supremacy of executive war powers. Each time that U.S. Armed Forces were introduced into hostilities following World War II, the Presidents all maintained their executive prerogative. As such, they defined through function that the decision to introduce U.S. Armed Forces into hostilities rests solely with the President, regardless of individual interpretations of the Framers' original intent.

This essay looks at the Supreme Court and acquiescence to measures by the Executive Branch that limit or suspend civil liberties during times of war or threats to national security.

This essay looks at the Supreme Court and acquiescence to measures by the Executive Branch that limit or suspend civil liberties during times of war or threats to national security.

The thesis studies the U.S. legal framework on war powers, concluding that it has not allowed the President and Congress to work together on war powers issues. From the constitutional viewpoint, this lack of friendly environment arises from the fact that the Constitution shares war powers between the presidency and the Congress, producing the conflict. From a political viewpoint, this dispute is explained by the presidential willingness to use the war powers without congressional authorization. In addition, every time lawmakers have sued the president for violations of the War Powers Resolution, the judiciary has ruled that this is a political question. Legally speaking, this conflict could end in a constitutional conflict. Politically speaking, this dispute could also have an important impact on the role that the United States plays within the community of nations and on the U.S. national security goal of promoting democracy abroad. In order to offer a possible solution, the thesis proposes legal changes that would strengthen the consultation process established by both the War Powers Resolution and the National Security Act of 1947.

This paper investigates the need for an Army liaison staff to Congress for strategic matters. The historical and descriptive approaches are used to evaluate pertinent documentary evidence. The Congressional process, as it pertains to military policy, is illustrated with two different models. In recent years Congress has displayed a strong desire to curb the powers of the President and to reassert Congressional prerogatives. However, in attempting to reassert control, Congress may be ignoring the greater impact of its actions upon military strategy. Without close coordination and cooperation between Congress and the Administration on development of military policy, the strategic effort can be degraded. It is evident from the history of the Army legislative liaison effort that liaison between the Army and Congress has developed in response to a need for better communication between the two bodies. The determination of many members of Congress to reassert Congressional prerogatives, particularly in the area of the war powers, has underscored the need to once again improve communications. A good professional understanding between the Army and Congress is needed to implement wise legislation., Master's thesis.

The Constitution is clear on the subject of war powers: Congress, a body representative of the people, was to be trusted with the powers. Capable of deliberation, the Congress would be less likely to commit the nation to a hasty, unwise course of action than the executive, and so it was in most instances until 1940. In this past quarter century, Presidentially initiated hostilities based on 'precedent' and 'inherent powers' resulted in interventions in Korea, the Dominican Republic, Vietnam and Cambodia. The author maintains that centralization of the war power in the Executive has increased the stature and prominence of deception, leading to the rule of man rather than the rule of law. A decision arrived at by a single man often does not receive the benefit of opposing views and is often arrived at in secrecy; this is especially true of a decision to arm and commit the nation to war. In the absence of an external threat, the Executive, to accomplish policy which it considers to be in the national interest, has in the past quarter century committed the nation to armed hostilities knowing well the adverse reaction the decision would receive had it been aired in public.

91 N.Y.U. L. Rev. 689 (2016)

The atrocities committed by Americans at Abu Ghraib shocked the collective American moral conscience. Guilty of inhumane treatment of its prisoners there, Abu Ghraib did immeasurable damage to U.S. credibility and made clear that American detainee policy is off-track and needs to comply with objective standards of law, morality, and operational effectiveness. The emotional aftermath of 9/11 created a politically permissive environment within which the military organizational structures was unsuited for the critical tasks assigned to them relative to the context of the Bush Administration’s “new paradigm.” Two issues sit at the forefront of the political context of U.S. detainee policy: war powers and human rights. This thesis will utilize a synthesized decision-making model to analyze the President’s decisions leading to the current detainee policy. Policy alternatives require smaller corrections to bureaucratic process, not a major reorganization of bureaucratic structure. This thesis will provide policy-makers with a moral and legal framework for a corrected detainee policy. Adoption of the full framework of the 1949 Geneva Conventions, including U.S. ratification of Additional Protocols I and II (1977), provides the best framework to combat transnational insurgency, while retaining the moral and legal high ground required of the world’s superpower., http://archive.org/details/theevolutionofwa1094555221, Major, United States Air Force, Approved for public release; distribution is unlimited.

CHDS State/Local, On September 14, 2001, Congress passed the 2001 Authorization for Use of Military Force (AUMF). Over the past 13 years, the AUMF has served as the primary legal foundation for the use of force against terrorist organizations and other counterterrorist operations. Since its passage, threats facing the United States have evolved and new groups have emerged. Yet, Congress has failed to reexamine the statute. This thesis examines whether the AUMF serves as the proper foundation for addressing current terrorist threats or whether an alternative legal tool is more appropriate. To conduct this examination, it details and applies a methodology, or analytical framework, for assessing the status quo application of the AUMF and its potential alternatives. This thesis evaluates and ascertains the best among proposed courses of actions for the future of the AUMF by analyzing the evolution of terrorist threats, constitutional concerns, the consequences of altering the legal structure upon which national counterterrorism strategies rely, international legality, and precedent. Ultimately, this thesis recommends that Congress both sunset the AUMF and implement a tailored approach to force authorization, one that balances constitutional protections and security, while providing a foundation for crafting future force authorizations., http://archive.org/details/farewelltormsplf1094543939, Outstanding Thesis, Attorney, California Governor’s Office of Emergency Services, Los Alamitos, CA, Approved for public release; distribution is unlimited.

Those countries, including the United Kingdom, using force in Libya in 2011 have taken much greater care to ensure that their actions are underpinned by legality. This suggests a return to respect for the jus ad bellum, but as the operation against Libya unfolded it became clearer that some of the problems that undermined the legality and legitimacy of the invasion of Iraq 8 years earlier had not been avoided, which raises the question of how such operations can be kept within the strict bounds of the law.

Those countries, including the United Kingdom, using force in Libya in 2011 have taken much greater care to ensure that their actions are underpinned by legality. This suggests a return to respect for the jus ad bellum, but as the operation against Libya unfolded it became clearer that some of the problems that undermined the legality and legitimacy of the invasion of Iraq 8 years earlier had not been avoided, which raises the question of how such operations can be kept within the strict bounds of the law.

Those countries, including the United Kingdom, using force in Libya in 2011 have taken much greater care to ensure that their actions are underpinned by legality. This suggests a return to respect for the jus ad bellum, but as the operation against Libya unfolded it became clearer that some of the problems that undermined the legality and legitimacy of the invasion of Iraq 8 years earlier had not been avoided, which raises the question of how such operations can be kept within the strict bounds of the law.

This paper investigates the need for an Army liaison staff to Congress for strategic matters. The historical and descriptive approaches are used to evaluate pertinent documentary evidence. The Congressional process, as it pertains to military policy, is illustrated with two different models. In recent years Congress has displayed a strong desire to curb the powers of the President and to reassert Congressional prerogatives. However, in attempting to reassert control, Congress may be ignoring the greater impact of its actions upon military strategy. Without close coordination and cooperation between Congress and the Administration on development of military policy, the strategic effort can be degraded. It is evident from the history of the Army legislative liaison effort that liaison between the Army and Congress has developed in response to a need for better communication between the two bodies. The determination of many members of Congress to reassert Congressional prerogatives, particularly in the area of the war powers, has underscored the need to once again improve communications. A good professional understanding between the Army and Congress is needed to implement wise legislation. Although strategy is developed and implemented within the executive branch, Congress controls the structural means for carrying any strategy into effect. The Office of the Chief of Legislative Liaison has been very effective in dealing with the structural factors needed to carry out Army decisions on strategic matters. However, there appears to be a need to increase the emphasis upon providing Congress with a clear and consistent rationale for strategic programs as they pertain to the Army. The conclusion of this study indicates that an Army liaison staff to Congress for strategic matters should be established. This could be accomplished in several ways. This study recommends that initial consideration be given to expanding the current legislative liaison organization to include a d

Strange as it may seem, the powers of the President, whether considered from the viewpoint of his powers as Executive, or his powers as Commander-in-Chief of the armed forces of the United States, important as they are, have received surprisingly little attention in treatises and commentaries on the Constitution, beyond reference to the constitutional provisions themselves. Therefore, the purpose of this study will be to analyze and invite attention not only to the "war powers" so-called, of the President, which may be exercised in time of war, but also those which relate to the initiation and termination of war, as well as the conduct of war, and to show what those powers are, their character, source from which derived, and manner in which they are exercised.