As we enter the next phase of the Afghanistan war, inevitably, it comes time to re-ask ourselves some old questions. Do we want to be there in the first place? (I have answered in the affirmative.) How, and when, do we terminate our presence? (Even President Obama seems unsure.) And, is the war even “legal”?
Of course, it’s somewhat complicated to talk about the legality of wars, even on a good day. The notion that order can be brought to such chaos is tested by every battle, and every conflict in human history. But we can seek order at the outset, by requiring that war be declared outright, whether (in Rome) by fetial ritual or (today) by act of Congress. Our Constitution requires us to do so, for although the President is the Commander-in-Chief of the armed forces, that power amounts to:
[N]othing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.
The President currently has statutory authority — broadly construed — to pursue the masterminds of 9/11, and their allies. But is this enough? The conflict has changed in tambre, if not in ultimate goal, and to some extent, such “mission creep” should require a re-authorization, as a matter of good policy if not good law. It is good for the world to know where we stand.
On the other hand, a war authorization is an intensely political act, one that can either rebuild or, in one shot, expend a President’s entire supply of political capital. So, a small suggestion: we should wait to reauthorize the war until we can report a positive change that merits scaling back our presence, or otherwise altering it for the better. A well-timed re-authorization would ratify the President’s victory while presenting the same structural and institutional benefits for democracy. Perhaps more: requesting a downward authorization sets good precedent for future executives, and limits the otherwise infinite (and vague) AUMF.
Cynical? Somewhat. But since Augustus first cast his spear into (symbolic) Egypt, that’s the way it’s been.