David Petraeus Sends Mixed Messages on War Powers

This story was updated on July 5, 2017

Early in an appearance at the Aspen Ideas Festival on Friday, David Petraeus, the retired general and former CIA director, praised President Trump for a missile strike.

“He has shown a willingness to make decisions. Bashar Assad used chemical weapons. Within 36 hours, 50 cruise missiles hit the airfields from which those were launched. And I thought that was pretty impressive,” Petraeus said. “It was measured. It was proportionate. It was decisive. There was no agonizing. He didn’t throw it to Congress. There were no strolls around the White House grounds.”

Did you catch the significance of that comment?

The use of military force is so disconnected from the Constitution that a former general with a PhD casually praised a president for not going to Congress before waging war.

If Petraeus had disdain for the U.S. Constitution, that would be one kind of problem. But at least arguing against his position would be relatively straightforward. In fact, Petraeus has high regard for the Constitution, and even values the particular part of the Constitution that assigns declarations of war to Congress.

The problem the United States actually faces is different, thornier, and more difficult to combat. And all this is illustrated by an exchange later in Petraeus’s appearance.

Jane Harman, the former member of Congress, posed this question to the former general:

Members of Congress take an oath to uphold the Constitution. The Constitution places the obligation to declare war in the United States Congress.

And yesterday, I am told, something amazing happened.

Barbara Lee, the member of Congress who was the sole vote against the Authorization to Use Military Force in Afghanistan in September of 2001, which has been used as justifications for most of our military actions, certainly in the Middle East––Barbara Lee introduced an amendment to the Defense Authorization Act to have that authorization expire in the next nine months. And it passed unanimously.

My question is, I actually think it’s high time that Congress stepped up and passed a new AUMF. And my question is, how do you assess what Congress has done and might do in terms of providing the support it should, not just financially but in terms of a declaration of war, or at least an authorization of force which should include their limitations on the use of force, and should include a public debate about public support for whatever it is.

David Petraeus answered:

As late as January or February, in the first session of the House Armed Services Committee, as the first person to testify, I said that I felt Congress had not met its responsibilities in updating the authority to use military force.

We tried several times. When I was director of the CIA I contributed to a draft that would have updated it. Let’s face it, we have stretched this beyond all recognition.

That was really an authority not just for Afghanistan it was to go after those who were behind the 9/11 attacks, so Al Qaeda. Then we kind of stretched it to be cousin of Al Qaeda in Iraq. Then we stretched it to the son of Al Qaeda or grandson, the Islamic State, with a presence in Somalia, North Africa, and elsewhere. We’ve done that solely because Congress has not provided an updated version of that. So I’m strongly with you.

Taken together, this strikes me as the attitude a lot of the foreign-policy establishment takes toward the Constitution and the war powers of the legislature. It isn’t that they deny where the founding document vests the war power; or that they don’t ever want Congress to assert itself; rather, their implicit stance is that Congress probably ought to be more involved in authorizing military force… but that if Congress doesn’t act, it’s okay for the president to just go ahead and wage war anyway.

Many describe that posture as pragmatic.

But I would argue that Congress fails to step up and define when force can and cannot be used precisely because there is effectively no practical need for it to do so. By letting the president act unconstitutionally, members of Congress escape accountability on matters of war and peace, undermining our representative system of self-government.

In contrast, if the Constitution was enforced, if the rule of law prevailed and the president was constrained from doing anything that the 2001 AUMF didn’t allow, Congress would have long ago revisited the subject of where America ought to be waging war abroad, and U.S. foreign policy would have more democratic legitimacy. If Petraeus really values those things—and I believe that he does—he should stop praising extra-Constitutional uses of force like the missile strike on Syria.

Update: A representative of David Petraeus writes on his behalf to object that there is no contradiction between valuing the congressional power to declare war and praising Trump’s decision to bypass Congress when ordering an airstrike on Syria. In Petraeus’s view, the president possessed inherent authority to launch the strike.

Here is the representative’s full response:

Your column of June 30th raises an issue of considerable importance to our nation as our brave men and women in uniform engage our enemies around the globe. Thank you for clearly noting General Petraeus’ high regard for the Constitution and for the indispensable role of the US Congress in authorizing the use of military force abroad. He has long believed Congress should update the 2001 Authorization for the Use of Military Force (AUMF) and that in the absence of a new AUMF, both Presidents Obama and Trump have stretched the legal interpretations of the 2001 AUMF far beyond all recognition. In his testimony before the House Armed Services Committee in February 2017, General Petraeus called on Congress to meet its constitutional responsibilities to debate and pass a new authorization for the use of military force to combat the Islamic State in Syria and elsewhere.

However, you seem to misunderstand General Petraeus’ comments on the missile strikes in Syria. The announced legal basis for the strikes on the Syrian airbase from which the chemical attacks emanated was not the 2001 AUMF, but the President’s constitutional (Article II) authority as “Commander in Chief and Chief Executive, for foreign and military affairs, as well as national security.”

Here is the relevant portion of the President Trump press release:

“Tonight, I ordered a targeted military strike on the airfield in Syria from where the chemical attack was launched.  It is in this vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.  There can be no dispute that Syria used banned chemical weapons, violated its obligations under the Chemical Weapons Convention, and ignored the urging of the U.N. Security Council.  

Years of previous attempts at changing Assad's behavior have all failed, and failed very dramatically.  As a result, the refugee crisis continues to deepen and the region continues to destabilize, threatening the United States and its allies.”

Thus, the central constitutional issue is whether the President has authority under Article II to unilaterally conduct limited (in scope, scale, duration) military operations to defend the national interest (narrowly defined as the protection of US persons and property). It should be noted that this is an area of contested law. A more expansive interpretation of US national interest has included regional stability, protection of allies, and enforcement of norms against WMD use.

Although the Trump administration did not specifically reference US military members in Syria as justification for the missile strike against the Syrian air base, protecting US soldiers on the ground against future chemical weapons attack would be sufficient justification for unilateral Presidential action under existing Office of Legal Counsel interpretations of Article II powers. Importantly, the number of US troops on the ground has increased since 2013 when the Obama administration’s OLC considered strikes legal and justified.

Thus, General Petraeus’ position is not inconsistent. It is possible to praise a President’s decisive use of Article II authority to protect national interests while also calling for Congress to assert its authority (Article 1, Sec 8 ) to authorize the use of military force abroad. Congress should assert its constitutional prerogatives to define and delimit the use of military force abroad. And the President should continue to use his constitutional authority to protect our service members, allies, and national interests in Syria and elsewhere.