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New US Resolution Would Make Declaring War Without Congress an Impeachable Crime

© AP Photo / J. Scott ApplewhiteTulsi Gabbard
Tulsi Gabbard - Sputnik International
The American military has fought in dozens of conflicts, but the US has only declared war five times in its history. A new bipartisan bill in Congress aims to curb this trend by making it illegal for the president to take the country into war without authorization by Congress, as mandated by the US Constitution.

Radio Sputnik's Loud & Clear spoke with Bruce Fein, a constitutional law scholar, former deputy assistant attorney general of the United States and the author of the bill, about the impetus for the new legislation and the history of the debate over declarations of war and authorized uses of force.

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The bill, H Res 922, was introduced by House Reps. Tulsi Gabbard (D-HI) and Walter Jones (R-NC) on July 18. In a press release that day, Gabbard said, "For decades, Congress has ceded its Constitutional responsibility of deciding whether or not to declare war, to the President. As a result, we have found ourselves in a state of perpetual war, without a declaration of war by Congress and without input from the American people."

​"Our bipartisan resolution aims to end presidential wars, and hold Congress accountable so it does its job in making the serious and costly decision about whether or not to send our nation's sons and daughters to war," the press release said.

"Article 1 Section 8 of the Constitution gives Congress the exclusive authority to declare war," Gabbard said on the House floor July 18, according to the press release. "But the last time Congress officially declared war was December 8, 1941 — the day the US entered World War II. Ever since, Congress has failed to uphold their constitutional responsibility and have instead ceded power to the president. So, we remain in a state of perpetual war, led by presidents in both parties at great cost to the American people with no declaration of war by Congress and no input from the American people."

The Washington Examiner noted that the proposed legislation would be nonbinding, but it would define presidential wars not declared by Congress as impeachable "high crimes and misdemeanors."

​Fein told Loud & Clear host John Kiriakou that the resolution has its origin 70 years ago. "Until that time it was understood by all lawyers and the executive branch and members of Congress that the president could not initiate war, take this nation from a state of peace to war, unless Congress has declared it."

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While the common nomenclature for the performance of Congress' duty is "a formal declaration of war," Fein said that term "trivializes the importance. Unless you can get a consensus of the legislative branch to agree that we should turn our legal architecture from peace to war — and war, after all, is legalizing first-degree murder; that is, you can kill, not in self-defense — there is no justification for going to war. In fact, that's one of the worst things that can happen to a nation. A nation's genius migrates from production to killing; it's enormously expensive; the executive branch goes from transparency to secrecy; privacy is destroyed with indiscriminate surveillance; there is no due process of law; president replaces judge, jury, prosecutor and executioner… those are very serious consequences of going to war."

​The United States has only actually declared war five times in the 230 years since the US Constitution was adopted in 1788: in 1812, against the UK; in 1846, against Mexico; in 1898, against Spain; in 1917, against Germany; and in 1941, against Japan. However, Fein noted that in each of those cases, the US Congress didn't actually "take the US from a state of peace into a state of war," but rather acknowledged that a state of war already existed so that subsequent legal measures could be taken, such as the raising of troops and the authorization of war funding.

"In 1920, the United States Senate rejected the Versailles Treaty, the League of Nations treaty, that was presented by President Woodrow Wilson, precisely because he refused to accept a reservation… that made clear the United States would not defend the borders of any other country by military means unless the US declared war. We had that understanding that the war power rested with Congress," Fein said.

December, 8, 1941, was the last time the US Congress declared war, following the attack on Pearl Harbor, Hawaii, by the Japanese Empire.

In 1950, President Harry Truman described the Korean War as a "police action." He didn't get authorization for it, and no formal state of war was ever declared with any foreign power. Since then, the US has engaged in countless "presidential wars," as Fein called them, without having declared war. Sometimes Congress would say nothing; sometimes it just gave that power away to the president, saying that if he went to war, then he bore the consequences of the conflict and not Congress.

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In 1973, Congress passed the War Powers Resolution in an attempt to check this trend by limiting the circumstances under which a president can unilaterally authorize force without Congressional approval, but to little avail. By 1990, when President George HW Bush was preparing for military action against Kuwait in line with a United Nations resolution authorizing it in case diplomacy failed, Bush said, "I don't need your authority, but I want your support," Fein noted.

What changed? Fein noted the accumulation of executive power as the US has "migrated from a republic to an empire seeking to dominate the whole world." The mainstream media has played a key role in "propagating this nonsense" that the president has the power to go to war, the scholar noted, adding that they "are not constitutionally literate."

Why does it really matter whether the US legislative or executive branch declares war? To Fein, it's a question of what the consequences of that decision are for the different parties involved.

Fein noted that Congress is generally risk-averse, because they have to answer directly to their constituencies. He recalled when then-President Barack Obama wanted Congress to authorize force against Syria in 2013, and legislators refused to even vote on the question. The constitutional scholar said that Congress members have no real ulterior motive for authorizing war. On the other hand, Fein said, the president is a singular person whose name will go down in history, who will get "monuments, footprints in the sands of time," and be "part of a star chapter in the annals of history," and as a consequence, executives tend to behave more recklessly in questions of war and peace.

The real danger now is that Congress "gives the president permission to go to war if he thinks it's a good idea," and Fein noted that the point of this bill is to say "no, we never want a president to make that decision." Different branches of government don't have the power to abdicate their own responsibilities to another branch of the government — the Supreme Court has repeatedly said so.

Why impeachment? Fein noted that Benjamin Franklin said at the Constitutional Convention in 1878 that "impeachment is the substitute for tyrannicide." While many people think of impeachment proceedings as a sort of legal coup d'etat, in fact, it's "how civilized nations" express their lack of confidence in the executive to legally carry out their duties, Fein said. When President Bill Clinton was impeached, he wasn't "exiled to Siberia… like [Soviet Premier Nikita] Khrushchev," he continued to live a public life and to flourish.

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The Examiner noted that the House is unlikely to seriously consider the bill, since it's Republican-controlled, and the measure will be seen as an attack on the authority of US President Donald Trump, who is also a Republican. Nonetheless, Fein said he hopes to collect 50 to 80 cosigners by the time the two-year life of the bill expires, after which it must be reintroduced.

The real point, though, is to begin a new conversation about war, executive power and constitutional law, because "we haven't had a serious debate about this in over 70 years," he said.

We are "trying to get back to our constitutional moorings," Fein said.

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