The War on Terror Will Soon Be Illegal

Now that the 9/11 perpetrators are mostly dead, America needs to rethink the legal basis for its global fight against al-Qaeda

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Good news!

"The leadership ranks of the main al-Qaeda terrorist network ... have been reduced to just two figures whose demise would mean the group's defeat," The Washington Post reports. What does this mean for the war on terrorism?

It'll soon be illegal.

What I mean is that the legal basis for the War on Terror is a September 18, 2001 congressional resolution. "The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons," it states. Obviously, there will be terrorists left in the world when the folks who perpetrated 9/11 are dead or arrested, and it may even make sense to wage war on them.

But doing so requires new congressional authorization.

That legal requirement may not matter in the short run. As Kevin Drum puts it, "In practice, we launched a drone war against AQAP in Yemen and no one blinked. Ditto for a military operation against Libya, which had nothing even arguably to do with al-Qaeda. In that case, Congress roused itself from its torpor just enough to growl slightly, but then fell immediately back into a coma. Legalities aside, virtually no one in Congress seems much interested in deciding whether the AUMF has had its day and should no longer be considered an all-purpose excuse for military action in any country that shares a majority religion with Afghanistan."

He's right.

Congress hasn't asserted itself to prevent the executive branch from waging war without its okay, even though the United States Constitution and the War Powers Resolution demand it. Barack Obama and future presidents may take congressional passivity as license to launch more undeclared wars in the future. They'll even cite Libya as precedent. "No one objected when Obama launched that war," future partisans will say. "It would be unfair to impeach the current president for starting a war without congressional authorization."

I don't think we ought to leave them that excuse.

That's why I'm writing this post, and encouraging others to link or Tweet it, or better yet, to write their own version. Here's the message I want to get out into American discourse. Consider it an open letter to whoever occupies the White House come 2013, and to every future president of the United States besides.

Dear POTUS,

You've sworn to protect and defend the Constitution. Core to its design is the separation of powers. The Founders quite deliberately assigned to the legislative branch the power to declare war. And although presidents have sometimes waged war without congressional approval and gotten away with it, it remains the case that willfully violating the supreme law of the land is a legitimately impeachable offense, should any future Congress wish to go that route.

This open letter is meant to put you on notice.

Should you wage war without congressional approval and a future legislature tries to hold you accountable, you cannot fall back on the argument that everyone accepts your right to do so, or that no one objected when past presidents waged war.

Many Americans object, and the law is on their side.

You cannot claim it is unfair to be targeted for impeachment, even though prior presidents who behaved similarly were permitted to serve out their terms, because you've been forewarned: there is a growing constituency that wants Congress to reclaim legislative supremacy in war-making, and they'll urge future Congresses to zealously guard their Article 1, Section 8 enumerated powers.

Wage war sans Congress at your own peril. 

Image credit: Reuters


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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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